Lexisnexis® Tax Center – Results
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LexisNexis® Tax Center – Results Switch Client Sign Out Help Get a Dossier History Research My Tax Center Shepard's® Tax News Tax Forms Document FOCUS™ Terms Search Within Advanced... ● ● ● View: TOC | Full | Custom 1 of 1 ● ● ● ● Book Browse LexisNexis Tax Advisor -- Federal Topical § 1J:2.06 (Copy w/ Cite) Pages: 26 LexisNexis Tax Advisor -- Federal Topical § 1J:2.06 LexisNexis Tax Advisor -- Federal Topical Copyright 2009, Matthew Bender & Company, Inc., a member of the LexisNexis Group Part 1. Computing Federal Income Tax Vol. 1J Securities Transactions CHAPTER 1J:2 Capital Gains and Losses ** LexisNexis Tax Advisor -- Federal Topical § 1J:2.06 § 1J:2.06 Computing Capital Gains and Losses [1] Definitions [a] Net Long-Term Capital Gain or Loss. IRC Section 1222(7) defines "net long-term capital gain" as the excess of long-term capital gains realized in the taxable year over long-term capital losses for the same year. Thus, if total long-term gains for a taxable year amounted to $10,000 and total long-term losses to $5,000, the net long-term gain for the year would be $5,000. Conversely, if the amount of gain and loss were reversed, the taxpayer would realize a net long-term capital loss of $5,000.1 [b] Net Short-Term Capital Gain or Loss. Net short-term capital gains and losses are determined in the same fashion as those which are long-term, that is, net short- term gain is the excess of short-term gains over short-term losses,2 and net short-term loss, the excess of such losses over such gains.3 [c] Net Capital Gain and Net Capital Loss. A taxpayer is deemed to have a net capital gain in any year in which the taxpayer's net long-term capital gain exceeds the taxpayer's net short-term capital loss.4 The taxpayer has a net capital loss whenever the losses for the year (long- and short-term taken together) exceed the amount allowed as a loss deduction under IRC Section 1211.5 (If the taxpayer is a corporation, the amount of any loss carried back or forward to the year in question is excluded from the computation of net http://w3.lexis.com/research2/tax/api/taxstart.do?_m=...%20Advisor%20--%20Federal%20Topical%20%a7%201J%3a2.06 (1 of 16)2/12/2009 4:33:15 PM LexisNexis® Tax Center – Results capital loss.)6 [2] The Noncorporate Taxpayer [a] Treatment of Capital Gains [i] In General. Prior to the Tax Reform Act of 1986, the preferential treatment for taxpayers other than corporations was derived from the deduction from gross income of 60 percent of the net capital gain of the taxable year.7 The Act repealed the special treatment, subjecting net capital gains to the same rates as ordinary income. The increase in tax rates brought about by the Omnibus Budget Reconciliation Acts of 1990 and 1993 returned preferential treatment for long-term capital gains to the Code, but did so by capping the rate of tax imposed on such gains at 28 percent.8 The Taxpayer Relief Act of 1997 placed different and additional caps on the tax imposed on net capital gains, the differences depending on the holding period and type of asset. The Jobs and Growth Tax Relief Reconciliation Act of 2003 reduced the rates even further for taxable years prior to January 1, 2009.9 The rates prescribed by that legislation for taxable years ending after May 5, 2003 are-:10 Rate (%) Application Gain from the sale of assets held more than 12 months (adjusted net capital gain), if the taxpayer's regular rate of tax is 15 percent or less.11 Adjusted net 5 capital gain does not include collectibles gain, unrecaptured Section 1250 gain, or Section 1202 gain.12 The rate is reduced to zero for taxable years beginning after 2007. Collectibles gain, Section 1202 gain, and unrecaptured Section 1250 gain 10 realized by a taxpayer whose regular rate of tax is 10 percent. Adjusted net capital gain realized by a taxpayer whose regular rate of tax is greater than 15 percent.13 The rate also 15 applies to collectibles gain, Section 1202 gain, and unrecaptured Section 1250 gain realized by a person whose regular rate of tax is 15 percent. Unrecaptured Section 1250 gain (gain to the extent of prior depreciation deductions realized on the sale of 25 depreciable real property held for more than 12 months), if the taxpayer's regular rate of tax is greater than 25 percent.14 The creation of various categories of net capital gain requires a special sequence of netting of capital gains and losses.15 Short-term capital losses (including short-term capital loss carryovers) are applied, first, to reduce short-term capital gains. If there is a resulting net short-term capital loss, it is applied to reduce any net long-term capital gain from the 28-percent group, then to reduce gain from the 25-percent group, and, finally, to reduce net gain from the 15-percent group (5 percent for gain that would otherwise be taxed at 10 or 15 percent). The netting of long-term capital gains and losses calls for a net loss from the 28-percent group (including long-term capital loss carryovers) to be used, first, to reduce gain from the 25-percent group, and then to reduce gain from the 15-percent group. A net loss from the 15-percent group first reduces net gain from the 28-percent group and, then, net gain from the 25-percent group. The regulations provide for the treatment of look-through capital gain that arises from the sale or exchange of an interest in a partnership, S corporation or nongrantor trust held for more than one year. Look-through capital gain is the share of collectibles gain allocable to an interest in a partnership, S corporation, or trust, plus the share of Section 1250 capital gain allocable to an interest in a partnership.16 The share of collectibles gain taken into account is the amount of net gain that would be allocated to the partner, shareholder, or beneficiary if the partnership, corporation, or trust transferred all of its collectibles for cash equal to the fair market value of the assets in a fully taxable transaction immediately before the transfer of the interest; a similar rule applies to Section 1250 capital gain.17 Any capital gain remaining after accounting for look- http://w3.lexis.com/research2/tax/api/taxstart.do?_m=...%20Advisor%20--%20Federal%20Topical%20%a7%201J%3a2.06 (2 of 16)2/12/2009 4:33:15 PM LexisNexis® Tax Center – Results through capital gain is treated in the normal way by the partner, shareholder, or beneficiary.18 For years beginning after 2002 and ending before 2010, net capital gain is increased by the amount of qualified dividend income, namely, dividends received from domestic corporations and qualified foreign corporations.19 Tax years from 2008 through 2010 will be subject to various temporary and transitional rules. Taxation of long-term capital gains from sales or exchanges of securities during these years will be based on three principles: First, the basic tax rate for long-term capital gain and qualified dividend income will be 15 percent. This is the rate that will apply to ordinary sales of securities, that is, sales which are not affected by recapture, special capital gains rates for collectibles, etc. Second, if the taxpayer’s income would otherwise be taxed at the 10 or 15 percent tax bracket, then a zero percent capital gains rate will apply. Example: In the year 2008, for a married couple filing jointly, the 25 percent marginal bracket starts with taxable income of $65,100. If a couple has $70,000 of taxable income, $10,000 of which is attributable to long-term capital gains, then we look at the marginal bracket that the $10,000 would be in. Thus, hypothetically applying regular rates, $5,100 of that long-term capital gain would be taxed at 15 percent, and $4,900 would be taxed at 25 percent. The $4,900 is subject to the basic long-term capitals gains rate of 15 percent, and the $5,100 is not subject to taxes at all. After calculating the 15 percent tax on $4,900, that product is adding to the tax at the regular rates that would apply to the remaining $60,000 of taxable income. If that same couple had $65,100 or less of taxable income, including long-term capital gains, then there would be no tax at all on their long-term capital gains and only their other income would be taxable. Third, the scope of the so-called “kiddie tax,” an ever-present consideration when calculating tax liability on investment income, has been expanded in recent years. In the Small Business and Work Opportunity Act of 2007 (the “2007 Small Business Act”),20 there were several changes made to the scope of individuals covered by the kiddie tax, that is individuals whose investment income over an amount exempt from the kiddie tax ($1,800 in 2008) would be taxed at the parent’s marginal bracket: ● (1) Prior law enacted in 2006 applied the kiddie tax to individuals who had not attained age 18 at the end of the year. The 2007 Small Business Act extended the kiddie tax to cover individuals who had not attained age 19 at the end of the year. ● (2) The 2007 Small Business Act further applied the kiddie tax to an individual who had not attained age 24 at the end of the year if he or she is a full-time student for at least five months of the year, and the individual’s earned income (salary and net income from self-employment) is not more than half of his or her support for the year.