26 USC 162 - Trade or business expenses

U.S Code last checked for updates: May 01, 2024

§ 162.

Trade or business expenses

(a)

In general

There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—

(1)

a reasonable allowance for salaries or other compensation for personal services actually rendered;

(2)

traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; and

(3)

rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.

For purposes of the preceding sentence, the place of residence of a Member of Congress (including any Delegate and Resident Commissioner) within the State, congressional district, or possession which he represents in Congress shall be considered his home, but amounts expended by such Members within each taxable year for living expenses shall not be deductible for income tax purposes. For purposes of paragraph (2), the taxpayer shall not be treated as being temporarily away from home during any period of employment if such period exceeds 1 year. The preceding sentence shall not apply to any Federal employee during any period for which such employee is certified by the Attorney General (or the designee thereof) as traveling on behalf of the United States in temporary duty status to investigate or prosecute, or provide support services for the investigation or prosecution of, a Federal crime.

(b)

Charitable contributions and gifts excepted

(c)

Illegal bribes, kickbacks, and other payments

(1)

Illegal payments to government officials or employees

(2)

Other illegal payments

(3)

Kickbacks, rebates, and bribes under medicare and medicaid

(d)

Capital contributions to Federal National Mortgage Association

(e)

Denial of deduction for certain lobbying and political expenditures

(1)

In general

No deduction shall be allowed under subsection (a) for any amount paid or incurred in connection with—

(A)

influencing legislation,

(B)

participation in, or intervention in, any political campaign on behalf of (or in opposition to) any candidate for public office,

(C)

any attempt to influence the general public, or segments thereof, with respect to elections, legislative matters, or referendums, or

(D)

any direct communication with a covered executive branch official in an attempt to influence the official actions or positions of such official.

(2)

Application to dues of tax-exempt organizations

(3)

Influencing legislation

For purposes of this subsection—

(A)

In general

(B)

Legislation

(4)

Other special rules

(A)

Exception for certain taxpayers

(B)

De minimis exception

(i)

In general

(ii)

In-house expenditures

For purposes of clause (i), the term “in-house expenditures” means expenditures described in paragraphs (1)(A) and (D) other than—

(I)

payments by the taxpayer to a person engaged in the trade or business of conducting activities described in paragraph (1) for the conduct of such activities on behalf of the taxpayer, or

(II)

dues or other similar amounts paid or incurred by the taxpayer which are allocable to activities described in paragraph (1).

(C)

Expenses incurred in connection with lobbying and political activities

(5)

Covered executive branch official

For purposes of this subsection, the term “covered executive branch official” means—

(A)

the President,

(B)

the Vice President,

(C)

any officer or employee of the White House Office of the Executive Office of the President, and the 2 most senior level officers of each of the other agencies in such Executive Office, and

(D)

(i)

any individual serving in a position in level I of the Executive Schedule under section 5312 of title 5, United States Code, (ii) any other individual designated by the President as having Cabinet level status, and (iii) any immediate deputy of an individual described in clause (i) or (ii).

(6)

Cross reference

(f)

Fines, penalties, and other amounts

(1)

In general

(2)

Exception for amounts constituting restitution or paid to come into compliance with law

(A)

In general

Paragraph (1) shall not apply to any amount that—

(i)

the taxpayer establishes—

(I)

constitutes restitution (including remediation of property) for damage or harm which was or may be caused by the violation of any law or the potential violation of any law, or

(II)

is paid to come into compliance with any law which was violated or otherwise involved in the investigation or inquiry described in paragraph (1),

(ii)

is identified as restitution or as an amount paid to come into compliance with such law, as the case may be, in the court order or settlement agreement, and

(iii)

in the case of any amount of restitution for failure to pay any tax imposed under this title in the same manner as if such amount were such tax, would have been allowed as a deduction under this chapter if it had been timely paid.

The identification under clause (ii) alone shall not be sufficient to make the establishment required under clause (i).

(B)

Limitation

(3)

Exception for amounts paid or incurred as the result of certain court orders

(4)

Exception for taxes due

(5)

Treatment of certain nongovernmental regulatory entities

For purposes of this subsection, the following nongovernmental entities shall be treated as governmental entities:

(A)

Any nongovernmental entity which exercises self-regulatory powers (including imposing sanctions) in connection with a qualified board or exchange (as defined in section 1256(g)(7)).

(B)

To the extent provided in regulations, any nongovernmental entity which exercises self-regulatory powers (including imposing sanctions) as part of performing an essential governmental function.

(g)

Treble damage payments under the antitrust laws

If in a criminal proceeding a taxpayer is convicted of a violation of the antitrust laws, or his plea of guilty or nolo contendere to an indictment or information charging such a violation is entered or accepted in such a proceeding, no deduction shall be allowed under subsection (a) for two-thirds of any amount paid or incurred—

(1)

on any judgment for damages entered against the taxpayer under section 4 of the Act entitled “An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes”, approved October 15, 1914 (commonly known as the Clayton Act), on account of such violation or any related violation of the antitrust laws which occurred prior to the date of the final judgment of such conviction, or

(2)

in settlement of any action brought under such section 4 on account of such violation or related violation.

(h)

State legislators’ travel expenses away from home

(1)

In general

For purposes of subsection (a), in the case of any individual who is a State legislator at any time during the taxable year and who makes an election under this subsection for the taxable year—

(A)

the place of residence of such individual within the legislative district which he represented shall be considered his home,

(B)

he shall be deemed to have expended for living expenses (in connection with his trade or business as a legislator) an amount equal to the sum of the amounts determined by multiplying each legislative day of such individual during the taxable year by the greater of—

(i)

the amount generally allowable with respect to such day to employees of the State of which he is a legislator for per diem while away from home, to the extent such amount does not exceed 110 percent of the amount described in clause (ii) with respect to such day, or

(ii)

the amount generally allowable with respect to such day to employees of the executive branch of the Federal Government for per diem while away from home but serving in the United States, and

(C)

he shall be deemed to be away from home in the pursuit of a trade or business on each legislative day.

(2)

Legislative days

For purposes of paragraph (1), a legislative day during any taxable year for any individual shall be any day during such year on which—

(A)

the legislature was in session (including any day in which the legislature was not in session for a period of 4 consecutive days or less), or

(B)

the legislature was not in session but the physical presence of the individual was formally recorded at a meeting of a committee of such legislature.

(3)

Election

(4)

Section not to apply to legislators who reside near capitol

[(i)

Repealed. Pub. L. 101–239, title VI, § 6202(b)(3)(A), Dec. 19, 1989, 103 Stat. 2233]

(j)

Certain foreign advertising expenses

(1)

In general

(2)

Broadcast undertaking

(k)

Stock reacquisition expenses

(1)

In general

(2)

Exceptions

Paragraph (1) shall not apply to—

(A)

Certain specific deductions

Any—

(i)

deduction allowable under section 163 (relating to interest),

(ii)

deduction for amounts which are properly allocable to indebtedness and amortized over the term of such indebtedness, or

(iii)

deduction for dividends paid (within the meaning of section 561).

(B)

Stock of certain regulated investment companies

(l)

Special rules for health insurance costs of self-employed individuals

(1)

Allowance of deduction

In the case of a taxpayer who is an employee within the meaning of section 401(c)(1), there shall be allowed as a deduction under this section an amount equal to the amount paid during the taxable year for insurance which constitutes medical care for—

(A)

the taxpayer,

(B)

the taxpayer’s spouse,

(C)

the taxpayer’s dependents, and

(D)

any child (as defined in section 152(f)(1)) of the taxpayer who as of the end of the taxable year has not attained age 27.

(2)

Limitations

(A)

Dollar amount

(B)

Other coverage

Paragraph (1) shall not apply to any taxpayer for any calendar month for which the taxpayer is eligible to participate in any subsidized health plan maintained by any employer of the taxpayer or of the spouse of, or any dependent, or individual described in subparagraph (D) of paragraph (1) with respect to, the taxpayer. The preceding sentence shall be applied separately with respect to—

(i)

plans which include coverage for qualified long-term care services (as defined in section 7702B(c)) or are qualified long-term care insurance contracts (as defined in section 7702B(b)), and

(ii)

plans which do not include such coverage and are not such contracts.

(C)

Long-term care premiums

(3)

Coordination with medical deduction

(4)

Deduction not allowed for self-employment tax purposes

(5)

Treatment of certain S corporation shareholders

This subsection shall apply in the case of any individual treated as a partner under section 1372(a), except that—

(A)

for purposes of this subsection, such individual’s wages (as defined in section 3121) from the S corporation shall be treated as such individual’s earned income (within the meaning of section 401(c)(1)), and

(B)

there shall be such adjustments in the application of this subsection as the Secretary may by regulations prescribe.

(m)

Certain excessive employee remuneration

(1)

In general

(2)

Publicly held corporation

For purposes of this subsection, the term “publicly held corporation” means any corporation which is an issuer (as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c))—

(A)

the securities of which are required to be registered under section 12 of such Act (15 U.S.C. 78l), or

(B)

that is required to file reports under section 15(d) of such Act (15 U.S.C. 78o(d)).

(3)

Covered employee

For purposes of this subsection, the term “covered employee” means any employee of the taxpayer if—

(A)

such employee is the principal executive officer or principal financial officer of the taxpayer at any time during the taxable year, or was an individual acting in such a capacity,

(B)

the total compensation of such employee for the taxable year is required to be reported to shareholders under the Securities Exchange Act of 1934 by reason of such employee being among the 3 highest compensated officers for the taxable year (other than any individual described in subparagraph (A)),

(C)

in the case of taxable years beginning after December 31, 2026, such employee is among the 5 highest compensated employees for the taxable year other than any individual described in subparagraph (A) or (B), or

(D)

was a covered employee described in subparagraph (A) or (B) of the taxpayer (or any predecessor) for any preceding taxable year beginning after December 31, 2016.

Such term shall include any employee who would be described in subparagraph (B) if the reporting described in such subparagraph were required as so described.

(4)

Applicable employee remuneration

For purposes of this subsection—

(A)

In general

(B)

Exception for existing binding contracts

(C)

Remuneration

For purposes of this paragraph, the term “remuneration” includes any remuneration (including benefits) in any medium other than cash, but shall not include—

(i)

any payment referred to in so much of section 3121(a)(5) as precedes subparagraph (E) thereof, and

(ii)

any benefit provided to or on behalf of an employee if at the time such benefit is provided it is reasonable to believe that the employee will be able to exclude such benefit from gross income under this chapter.

For purposes of clause (i), section 3121(a)(5) shall be applied without regard to section 3121(v)(1).

(D)

Coordination with disallowed golden parachute payments

(E)

Coordination with excise tax on specified stock compensation

(F)

Special rule for remuneration paid to beneficiaries, etc.

(5)

Special rule for application to employers participating in the Troubled Assets Relief Program

(A)

In general

In the case of an applicable employer, no deduction shall be allowed under this chapter—

(i)

in the case of executive remuneration for any applicable taxable year which is attributable to services performed by a covered executive during such applicable taxable year, to the extent that the amount of such remuneration exceeds $500,000, or

(ii)

in the case of deferred deduction executive remuneration for any taxable year for services performed during any applicable taxable year by a covered executive, to the extent that the amount of such remuneration exceeds $500,000 reduced (but not below zero) by the sum of—

(I)

the executive remuneration for such applicable taxable year, plus

(II)

the portion of the deferred deduction executive remuneration for such services which was taken into account under this clause in a preceding taxable year.

(B)

Applicable employer

For purposes of this paragraph—

(i)

In general

(ii)

Disregard of certain assets sold through direct purchase

(iii)

Aggregation rules

(C)

Applicable taxable year

For purposes of this paragraph, the term “applicable taxable year” means, with respect to any employer—

(i)

the first taxable year of the employer—

(I)

which includes any portion of the period during which the authorities under section 101(a) of the Emergency Economic Stabilization Act of 2008 are in effect (determined under section 120 thereof), and

(II)

in which the aggregate amount of troubled assets acquired from the employer during the taxable year pursuant to such authorities (other than assets to which subparagraph (B)(ii) applies), when added to the aggregate amount so acquired for all preceding taxable years, exceeds $300,000,000, and

(ii)

any subsequent taxable year which includes any portion of such period.

(D)

Covered executive

For purposes of this paragraph—

(i)

In general

The term “covered executive” means, with respect to any applicable taxable year, any employee—

(I)

who, at any time during the portion of the taxable year during which the authorities under section 101(a) of the Emergency Economic Stabilization Act of 2008 are in effect (determined under section 120 thereof), is the chief executive officer of the applicable employer or the chief financial officer of the applicable employer, or an individual acting in either such capacity, or

(II)

who is described in clause (ii).

(ii)

Highest compensated employees

An employee is described in this clause if the employee is 1 of the 3 highest compensated officers of the applicable employer for the taxable year (other than an individual described in clause (i)(I)), determined—

(I)

on the basis of the shareholder disclosure rules for compensation under the Securities Exchange Act of 1934 (without regard to whether those rules apply to the employer), and

(II)

by only taking into account employees employed during the portion of the taxable year described in clause (i)(I).

(iii)

Employee remains covered executive

(E)

Executive remuneration

(F)

Deferred deduction executive remuneration

(G)

Coordination

(H)

Regulatory authority

(6)

Special rule for application to certain health insurance providers

(A)

In general

No deduction shall be allowed under this chapter—

(i)

in the case of applicable individual remuneration which is for any disqualified taxable year beginning after December 31, 2012, and which is attributable to services performed by an applicable individual during such taxable year, to the extent that the amount of such remuneration exceeds $500,000, or

(ii)

in the case of deferred deduction remuneration for any taxable year beginning after December 31, 2012, which is attributable to services performed by an applicable individual during any disqualified taxable year beginning after December 31, 2009, to the extent that the amount of such remuneration exceeds $500,000 reduced (but not below zero) by the sum of—

(I)

the applicable individual remuneration for such disqualified taxable year, plus

(II)

the portion of the deferred deduction remuneration for such services which was taken into account under this clause in a preceding taxable year (or which would have been taken into account under this clause in a preceding taxable year if this clause were applied by substituting “December 31, 2009” for “December 31, 2012” in the matter preceding subclause (I)).

(B)

Disqualified taxable year

(C)

Covered health insurance provider

For purposes of this paragraph—

(i)

In general

The term “covered health insurance provider” means—

(I)

with respect to taxable years beginning after December 31, 2009, and before January 1, 2013, any employer which is a health insurance issuer (as defined in section 9832(b)(2)) and which receives premiums from providing health insurance coverage (as defined in section 9832(b)(1)), and

(II)

with respect to taxable years beginning after December 31, 2012, any employer which is a health insurance issuer (as defined in section 9832(b)(2)) and with respect to which not less than 25 percent of the gross premiums received from providing health insurance coverage (as defined in section 9832(b)(1)) is from minimum essential coverage (as defined in section 5000A(f)).

(ii)

Aggregation rules

(D)

Applicable individual remuneration

(E)

Deferred deduction remuneration

(F)

Applicable individual

For purposes of this paragraph, the term “applicable individual” means, with respect to any covered health insurance provider for any disqualified taxable year, any individual—

(i)

who is an officer, director, or employee in such taxable year, or

(ii)

who provides services for or on behalf of such covered health insurance provider during such taxable year.

(G)

Coordination

(H)

Regulatory authority

(n)

Special rule for certain group health plans

(1)

In general

No deduction shall be allowed under this chapter to an employer for any amount paid or incurred in connection with a group health plan if the plan does not reimburse for inpatient hospital care services provided in the State of New York—

(A)

except as provided in subparagraphs (B) and (C), at the same rate as licensed commercial insurers are required to reimburse hospitals for such services when such reimbursement is not through such a plan,

(B)

in the case of any reimbursement through a health maintenance organization, at the same rate as health maintenance organizations are required to reimburse hospitals for such services for individuals not covered by such a plan (determined without regard to any government-supported individuals exempt from such rate), or

(C)

in the case of any reimbursement through any corporation organized under Article 43 of the New York State Insurance Law, at the same rate as any such corporation is required to reimburse hospitals for such services for individuals not covered by such a plan.

(2)

State law exception

(3)

Group health plan

(o)

Treatment of certain expenses of rural mail carriers

(1)

General rule

In the case of any employee of the United States Postal Service who performs services involving the collection and delivery of mail on a rural route and who receives qualified reimbursements for the expenses incurred by such employee for the use of a vehicle in performing such services—

(A)

the amount allowable as a deduction under this chapter for the use of a vehicle in performing such services shall be equal to the amount of such qualified reimbursements; and

(B)

such qualified reimbursements shall be treated as paid under a reimbursement or other expense allowance arrangement for purposes of section 62(a)(2)(A) (and section 62(c) shall not apply to such qualified reimbursements).

(2)

Special rule where expenses exceed reimbursements

(3)

Definition of qualified reimbursements

For purposes of this subsection, the term “qualified reimbursements” means the amounts paid by the United States Postal Service to employees as an equipment maintenance allowance under the 1991 collective bargaining agreement between the United States Postal Service and the National Rural Letter Carriers’ Association. Amounts paid as an equipment maintenance allowance by such Postal Service under later collective bargaining agreements that supersede the 1991 agreement shall be considered qualified reimbursements if such amounts do not exceed the amounts that would have been paid under the 1991 agreement, adjusted by increasing any such amount under the 1991 agreement by an amount equal to—

(A)

such 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 1990” for “calendar year 2016” in subparagraph (A)(ii) thereof.

(p)

Treatment of expenses of members of reserve component of Armed Forces of the United States

(q)

Payments related to sexual harassment and sexual abuse

No deduction shall be allowed under this chapter for—

(1)

any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or

(2)

attorney’s fees related to such a settlement or payment.

(r)

Disallowance of FDIC premiums paid by certain large financial institutions

(1)

In general

(2)

Exception for small institutions

(3)

Applicable percentage

For purposes of this subsection, the term “applicable percentage” means, with respect to any taxpayer for any taxable year, the ratio (expressed as a percentage but not greater than 100 percent) which—

(A)

the excess of—

(i)

the total consolidated assets of such taxpayer (determined as of the close of such taxable year), over

(ii)

$10,000,000,000, bears to

(B)

$40,000,000,000.

(4)

FDIC premiums

(5)

Total consolidated assets

(6)

Aggregation rule

(A)

In general

(B)

Expanded affiliated group

(i)

In general

For purposes of this paragraph, the term “expanded affiliated group” means an affiliated group as defined in section 1504(a), determined—

(I)

by substituting “more than 50 percent” for “at least 80 percent” each place it appears, and

(II)

without regard to paragraphs (2) and (3) of section 1504(b).

(ii)

Control of non-corporate entities

(s)

Cross reference

(1)

For special rule relating to expenses in connection with subdividing real property for sale, see section 1237.

(2)

For special rule relating to the treatment of payments by a transferee of a franchise, trademark, or trade name, see section 1253.

(3)

For special rules relating to—

(A)

funded welfare benefit plans, see section 419, and

(B)

deferred compensation and other deferred benefits, see section 404.

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cite as: 26 USC 162

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