26 USC 461 - General rule for taxable year of deduction

U.S Code last checked for updates: May 05, 2024

§ 461.

General rule for taxable year of deduction

(a)

General rule

(b)

Special rule in case of death

(c)

Accrual of real property taxes

(1)

In general

(2)

When election may be made

(A)

Without consent

(B)

With consent

(d)

Limitation on acceleration of accrual of taxes

(1)

General rule

(2)

Limitation

(e)

Dividends or interest paid on certain deposits or withdrawable accounts

(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

(h)

Certain liabilities not incurred before economic performance

(1)

In general

(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

(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

(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)

(C)

Paragraph not to apply to workers compensation and tort liabilities

(4)

All events test

(5)

Subsection not to apply to certain items

(i)

Special rules for tax shelters

(1)

Recurring item exception not to apply

(2)

Special rule for spudding of oil or gas wells

(A)

In general

(B)

Deduction limited to cash basis

(i)

Tax shelter partnerships

(ii)

Other tax shelters

(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

(5)

Economic performance

(j)

Limitation on excess farm losses of certain taxpayers

(1)

Limitation

(2)

Disallowed loss carried to 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

(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

(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

(7)

Coordination with 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

(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

(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

(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

(6)

Coordination with section 469

(Aug. 16, 1954, ch. 736, 68A Stat. 157; Pub. L. 86–781, § 6(a), Sept. 14, 1960, 74 Stat. 1020; Pub. L. 87–876, § 3(a), Oct. 24, 1962, 76 Stat. 1199; Pub. L. 88–272, title II, § 223(a)(1), Feb. 26, 1964, 78 Stat. 76; Pub. L. 94–455, title II, § 208(a), title XIX, §§ 1901(a)(69), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1541, 1775, 1834; Pub. L. 98–369, div. A, title I, § 91(a), (e), July 18, 1984,98 Stat. 598, 607; Pub. L. 99–514, title VIII, §§ 801(b), 805(c)(5), 823(b)(1), title XVIII, § 1807(a)(1), (2), Oct. 22, 1986, 100 Stat. 2347, 2362, 2374, 2811; Pub. L. 100–203, title X, § 10201(b)(5), Dec. 22, 1987, 101 Stat. 1330–387; Pub. L. 100–647, title I, §§ 1008(a)(3), 1018(u)(5), Nov. 10, 1988, 102 Stat. 3436, 3590; Pub. L. 101–239, title VII, § 7721(c)(10), Dec. 19, 1989, 103 Stat. 2400; Pub. L. 101–508, title XI, § 11704(a)(5), Nov. 5, 1990, 104 Stat. 1388–518; Pub. L. 104–188, title I, § 1704(t)(24), (78), Aug. 20, 1996, 110 Stat. 1888, 1891; Pub. L. 109–135, title IV, § 412(aa), Dec. 21, 2005, 119 Stat. 2638; Pub. L. 110–234, title XV, § 15351(a), May 22, 2008, 122 Stat. 1523; Pub. L. 110–246, § 4(a), title XV, § 15351(a), June 18, 2008, 122 Stat. 1664, 2285; Pub. L. 113–295, div. A, title II, § 221(a)(58)(B), Dec. 19, 2014, 128 Stat. 4047; Pub. L. 115–97, title I, § 11012(a), Dec. 22, 2017, 131 Stat. 2071; Pub. L. 115–141, div. U, title IV, § 401(a)(117), Mar. 23, 2018, 132 Stat. 1190; Pub. L. 116–136, div. A, title II, § 2304(a), (b), Mar. 27, 2020, 134 Stat. 356

cite as: 26 USC 461