When it comes to calculating gains or losses on asset sales, a few factors come into play: the asset’s holding period, type, and whether it was employed for personal use or in service of a trade or business.
Regarding the first dimension, when a taxpayer disposes of property, the Internal Revenue Code recognizes the gain or loss under either a capital or ordinary classification. For the last two, the taxpayer determines the character of the transaction by looking at the nature of the asset disposed.
This post examines the disposition treatment (gains and losses) for Section 1231, 1245, and 1250 property used in a trade or business.
What are Capital Gains and Losses?
A capital asset is an item owned for investment or personal purposes, machinery and equipment, buildings, and other personal-use items like household furnishings. By extension, this includes other implements in which the owner also intends to receive a return component such as stocks or bonds.
Depreciable assets, inventory, and other assets used in a business are not considered capital assets for tax purposes.
If an asset’s value changes and a difference between the adjusted basis in the asset and the amount realized from the sale exists, the sale produces a capital gain or capital loss. This is the capital loss definition.
For taxpayers, rates under capital gains often result in a more favorable tax treatment than those received under ordinary gains (short-term). In the case of capital losses, the taxpayer wants ordinary loss treatment because this deducts directly against the taxpayer’s taxable income and does not have an annual cap.
Also, always be mindful of the tax benefits of paying zero tax on passive income and long-term capital gains up to certain income thresholds.
Finally, capital gains and losses divide into two dimensions based upon holding period: short-term and long-term. The former has an asset held by the owner for a period of under one year while the latter involves holding for one year or longer.
Some exceptions to this rule exist in the case of patent property or property acquired by gift or from a decedent. For these items, refer to Publication 544, Sales and Other Dispositions of Assets, or Publication 550, Investment Income and Expenses.
Further, capital gains and losses can occur in traditional investments as well as alternative investments or any instance in which you place capital at risk.
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Net Capital Loss Deduction and Loss Carryover Rules
A net capital loss occurs when a taxpayer’s capital losses exceed capital gains for the year. An individual’s maximum net capital loss deduction in 2020 allowed against taxable income is $3,000 per year. This tax deduction comes with indefinite carryover until exhausted or netted against future capital gains.
Specific to corporations, they may deduct a capital loss carryover from a current year capital gain when calculating a net operating loss. However, they cannot deduct a capital loss carryback against a net capital gain to determine a net operating loss for the current year.
In other words, because the $3,000 deduction for net capital losses is only available to individuals and not to corporations, corporations may only use capital losses to offset capital gains. If an excess capital loss occurs, there is no carryback allowed.
However, as stated above, the taxpayer may use the carry forward of capital losses until exhausted. Also, the excess capital loss maintains its character as long-term or short-term in future years. The best tax software will handle any carry forwards if you use the same company’s software each year.
In a non-business environment, in the year in which a personal bad debt becomes worthless, it is then treated as a short-term capital loss. And remember, in the case of worthless stock and securities, they are treated as capital losses as if they were sold on the last day of the taxable year in which they became totally worthless.
I came very close to taking advantage of this worthless stock treatment on my first set of investment mistakes. My decision-making was not sound, and led me to the conclusion I am best served by investing in index funds for my portfolio.
Fortunately, I would have been granted some reprieve by having an ordinary loss recognized against my taxable income. Even under tax reform in 2018, these rules remain in place.
As a final note on net excess capital losses, if individual taxpayers choose the married, filing separately status, this limits the net capital loss deduction to $1,500 per person (half).
Capital Gains Tax Rates
If you have a net capital gain, a lower tax rate may apply to the gain than the tax rate which applies to your ordinary income. The term “net capital gain” means the amount by which your net long-term capital gain for the year exceeds your net short-term capital loss for the year.
The term “net long-term capital gain” means long-term capital gains reduced by long-term capital losses, including any unused long-term capital loss carried over from previous years.
The tax rate on most net capital gains no longer exceeds 15% for most taxpayers. Now, most net capital gains receive tax-free treatment if your income falls into the 10% or 12% ordinary income tax brackets.
However, for individuals in the 37% tax bracket and earning more than $434,551 and married, filing jointly taxpayers exceeding $488,851, their net capital gain resides in the 20% tax bracket.
Three other circumstances exist where net capital gains may receive tax treatment at rates greater than 15%:
- Taxable part of a gain from selling section 1202 qualified small business stock when taxed at a maximum 28% rate
- Net capital gains from selling collectible (such as coins, art, etc.) receive tax treatment at the 28% maximum rate
- The portion of any unrecaptured section 1250 gain from selling section 1250 real property will be taxed at a maximum 25% rate (discussed more below)
In case you’ve ever wondered whether you can have short term capital losses offset long term capital gains, the Internal Revenue Code outlines specific netting procedures for capital gains and losses. Essentially, the taxpayer nets gains and losses within each tax rate group (e.g., the 15 percent rate group), creating net short-term and long-term gains or losses by rate group.
Short-Term Capital Gains and Losses
The resulting short-term and long-term losses offset short-term and long-term gains (respectively) beginning with the highest tax rate group and continuing to the lower rates.
If short-term capital losses (including short-term capital loss carryovers) occur, they first offset short-term gains, which would have been taxed at ordinary income rates. The short-term capital loss is then used to offset any long-term capital gains from the next rate group (e.g., collectibles).
The remaining short-term capital loss will then offset any long-term gains from the higher percent group (e.g., unrecaptured Section 1250 gains). From here, the final short-term capital loss then offsets any long-term capital gains applicable at the lower tax rate group.
Long-Term Capital Gains and Losses
In the case of long-term capital gains and losses (including those long-term capital loss carryovers) from the highest rate group, they first offset gains from the highest rate group and then against net gains from the 15 or 20 percent rate group.
If there are long-term capital losses from the 15 or 20 percent rate group, they first offset net gains from the higher group.
What is Section 1231 Property?
- Section 1231 gains receive long-term capital gains treatment while Section 1231 losses are fully deductible as ordinary income against taxable income
Section 1231 assets comprise depreciable personal and real property used in the taxpayer’s trade or business and held for over 12 months (long-term). Trade or business property and capital assets (held for longer than 12 months) which have been involuntarily converted (e.g., fire, destroyed, etc.) are also included in this section.
Section 1231 property receives a special benefit under the Internal Revenue Code. These assets receive long-term capital gains treatment on net Section 1231 gains from sales, exchanges, or involuntary conversions of certain “noncapital” assets, subject to Section 1245 and Section 1250 provisions.
The tax code allows this because certain gains for IRC 1231 assets fall under Section 1245 or 1250, discussed below.
As a note, the lower capital gains rates indicated here do not apply to C corporations. All capital gains of a C corporation receive ordinary income tax treatment.
Net Section 1231 losses (Section 1231 losses in excess of Section 1231 gains) receive ordinary loss treatment, not that of a capital loss. For reference, there are no Section 1245 or 1250 losses.
When the taxpayer has a Section 1231 gain for the year, there is a 1231 look back provision. The taxpayer must look back 5 years and recapture as ordinary income any Section 1231 losses incurred.
Two primary benefits of this ordinary loss over a capital loss include:
- Capital losses in excess of capital gains cannot be deducted (except $3,000 [$1,500 if married, filing separately]) per year allowance for individuals, estate and trusts)
- Section 1231 loss deducts against taxable income in full without consideration of capital gains
When selling Section 1231 property for a gain, the taxpayer will realize a portion of the gain equal to depreciation previously claimed on the property. This shall be reported as an ordinary gain.
This gain equal to the depreciation receives no favorable tax treatment because it was deducted against ordinary income in the past as an expense and therefore receives the same ordinary income tax treatment. This is called recaptured depreciation.
When reporting recaptured depreciation expense as an ordinary gain, keep the following in mind and report the smaller of:
- Depreciation allowed on the asset (or allowable), or
- Amount of gain
For clarification of the first bullet, depreciation allowed represents what the taxpayer actually claimed on the tax return as a deduction. Depreciation allowable means what the taxpayer could have claimed if the taxpayer had used a proper depreciation method.
For any gains not recaptured, they are considered nonrecaptured net Section 1231 gains.
What is Section 1245 Property?
- Section 1245 property includes and property which has been subject to a depreciation or amortization allowance and (1) qualifies as personal property (tangible or intangible), (2) other tangible property (other than buildings and their structural components) or (3) part of real property not included in other tangible property. Some other elements exist for specific purposes.
In general, IRC 1245 property comprises personal properties used in a trade or business for more than 12 months. Sound familiar to Section 1231 property? It should because all 1245 property is 1231 property.
Specifically, section 1245 property examples include all depreciable and tangible personal property, such as furniture and equipment, or other intangible personal property, such as a patent or license, which is subject to amortization. Automobiles fall into the Section 1245 asset category.
Section 1245 recapture rules have depreciation recaptured upon the sale of a Section 1245 asset. The rule calls for the lesser:
- of the gain recognized or all accumulated depreciation is recaptured as ordinary income; and
- any remaining gain treated as a Section 1231 gain (long-term capital gain)
For example, if a taxpayer sells a machine with a cost basis of $10,000 and an adjusted basis of $6,000 (accumulated depreciation of $4,000) for $15,000, the transactions results in a $9,000 gain. The $4,000 is treated as ordinary income and $5,000 as a 1231 gain (long-term capital gain).
The idea here being the taxpayer received deductions against ordinary income by virtue of depreciation expense taken against taxable income. Therefore, the taxpayer should not receive the benefit of treating that portion of the gain as capital.
What is Section 1250 Property?
- Section 1250 assets consists of real property used in a trade or business over 12 months subject to depreciation which is not, nor has ever been Section 1245 property
Sec 1250 property includes all real property which is not Section 1245 property. Once again, all Section 1250 property is also Section 1231 property. However, if Section 1250 property becomes Section 1245 property due to a change in use, it can never again receive 1250 status.
Section 1250 property examples include a leasehold on land or other IRC 1250 property subject to an allowance for depreciation. A fee simple interest in land does not fall into this category because land does not depreciate from an accounting perspective.
Is land 1250 property, or, stated differently, what type of property is land? Land represents an example of property which is §1231 but neither §1245 nor §1250 because it cannot have depreciation taken against it.
For depreciation, if the taxpayer holds Section 1250 property for longer than a year, the additional depreciation is used for actual depreciation adjustments figured using the straight line method. Likewise, if the taxpayer holds Section 1250 property for 1 year or less, all depreciation expense falls under additional depreciation.
Or, the rules for Section 1250 differ slightly from Section 1245 in that the former recaptures only the portion of depreciation taken on real property in excess of straight line. Section 291 depreciation recapture now primarily applies to corporations.
In addition to Section 1250 recapture (if applicable), the total amount of the taxable recapture on real property as ordinary income under IRC Section 291 for corporations equals 20 percent of the lesser of:
- recognized gain, or
- accumulated straight-line depreciation (don’t use MACRS depreciation)
For individual taxpayers selling Section 1250 property at a profit, this gain is characterized as a Section 1231 gain and netted with other Section 1231 gains and losses. This determines if the individual taxpayer has an overall Section 1231 gain or loss for the tax year. Look below for a Section 291 example.
However, when an individual has sold a Section 1250 asset at a gain and included it with other Section 1231 gains, is taxed at a maximum rate of 25 percent for an amount equal to the lesser of:
- recognized gain on the sale of the Section 1250 asset, or
- the straight-line accumulated depreciation on the Section 1250 asset
Any excess gain of the amount taxed at this 25 percent maximum will receive tax treatment at the preferential long-term capital gains rates.
And now, an example of a Section 1250 gain.
Is Rental Property 1231 or 1250?
It depends. Before determining the appropriate classification, we need to consider each of the designations (§1231, §1245 and §1250), as well as the appropriate recapture provisions (§1245 and §1250 recapture) and finally, any unrecaptured §1250 gain. From there, we will also need to assess if you have any unrecaptured §1231 losses. For the sake of simplicity, we will ignore the scenario where the taxpayer purchased the property using a §1031 exchange.
When answering the question, “is residential rental property 1250 or 1231?” two main items determine how you treat the property: depreciation and the character of the gain. Also, for simplifying purposes, let’s assume the real estate the taxpayer wishes to sell does not belong to a C corporation- this would entail gains falling subject to corporate rates and therefore rendering the character of the gain (i.e., ordinary vs. capital) as largely irrelevant.
First, when calculating the taxable gain, the taxpayer must identify the asset type. For this example, let’s assume you wish to sell a fully furnished, residential rental property. Before proceeding, we will need to:
- distinguish between the §1231 assets, (depreciable assets held for one year or longer), and then
- sort the remaining assets between either §1245 assets, (depreciable personal property), or §1250 assets, (depreciable real property).
We do this because §1231 allows you to characterize gains as capital and losses as ordinary (the most advantageous classifications as one maxes out at a 20% rate while the other at 37%).
If you have depreciated all of the §1245 assets in the rental property (i.e., the furniture), you took an ordinary deduction for the depreciation expense against your taxable income. Therefore, because this depreciation expense offset taxable ordinary income, when the sale of the rental property generates a gain, these depreciated assets will classify as ordinary gains. This is called §1245 recapture.
To be specific, the amount of gain which you must recharacterize as ordinary equals the lesser of the original cost of the asset or the sales price minus the adjusted tax basis of the asset.
As an illustration, you purchase a piece of furniture at an original cost of $12,000 and sell it for $10,000. Prior to the sale, you claimed $5,000 of depreciation on the asset.
$10,000 – ($12,000 – $10,000) = $8,000 of gain that is recharacterized as ordinary income.
You must take note that you calculate the amount of §1245 recapture on each §1245 asset separately, not in the aggregate.
Finally, regarding §1250 assets, the treatment appears similar to §1245, but be cautious because it isn’t. §1250 requires recapture of depreciation taken in excess of what straight line depreciation would have been on the asset. This is done to the extent of the gain.
From the MACRS depreciation table (shows accelerated depreciation rates), you depreciate real property as straight line over 27.5 or 39 years. Because of this it is increasingly rare that any real property would be subject to §1250 recapture.
Section 1231 and 1245/1250 Assets – Gain or Loss Flowchart
Video on §1231, 1245, 1250, and §291 Explanations
In the YouTube video above, the narrator walks you through many of the topics discussed in the post above about Sections 1231, 1245, 1250 and 291. His high-level overview provides an added understanding of how the elements fit together.
Below, I provide more detail about other related items.
Form 4797 – Sale of Business Property
Tax rules allow companies to write off their losses against income, which lowers the taxes they owe to Uncle Sam. However, when taken a deduction for property disposed of can be more complicated as described by the definitions of various property sections above.
When claiming a business deduction related to a loss, it needs to be reported on either Schedule D of Form 1040 or on Form 4797, Sales of a Business Property. Among other items, this form reports:
- Sale or exchange of property
- Disposition of noncapital assets
- Disposition of capital assets not reported on Schedule D
Further, Form 4797 also reports involuntary conversions and recapture amounts under Sections 179 and 280F(b)(2).
In oversimplified terms, what the taxpayer doesn’t report on Schedule D (capital gains and losses on investment property), gets reported on Form 4797. Specifically, Form 4797 reports the sale of capital assets, such as Sections 1231, 1245, and 1250 assets.
If a business has made an investment in property or equipment with the intention of selling it for profit, the taxpayer would also place this asset on Form 4797.
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What are Section 1231 Transactions?
Remember, a Section 1231 asset is used in a trade or business and held for more than 12 months on the date of disposition (sale or exchange). Therefore, a Section 1231 transaction is the sale or exchange of a Section 1231 asset, the holding period for which starts the day after you received the property and ends on the day you dispose of the asset.
The categories for Section 1231 transactions include:
Real or depreciable property (inclusive of real and personal property)
Personal refers to movable property, meaning buildings, land, and structures don’t fit the description. These items do qualify for depreciation, however.
Depreciable personal property includes amortizable section 197 intangibles. These assets are acquired in the acquisition of a business and would be reported on Form 8594, Asset Acquisition Statement. Such examples include brands, trade names, customer/patient/client lists, and trademarks.
Sales or exchange of a leasehold
The leasehold considered must be used in a trade or business and held over one year.
Cattle and horses
The sale or exchange of cattle and horses held for draft, breeding, dairy, or sporting purposes and held for 24 months or more.
Livestock (excluding poultry)
Sales or exchanges of other livestock, excluding poultry.
Similar to item 2 above, though less time, the livestock must be held for draft, breeding, dairy, or sporting purposes and held for 12 months or more.
Sales of exchanges of unharvested crops
The crop and land must be sold, exchanged, or changed through involuntary conversion at the same time and to the same person. Finally, the land must be held over 12 months.
Cutting down or disposing of timber; disposition of domestically produced coal or iron ore
Standing timber held as investment property is considered a capital asset under Section 1231. The gain or loss from its sale it reported as a capital gain on Form 8949 and Schedule D, as applicable.
When the taxpayer chooses to harvest timber for sale under IRC Section 631(a), the taxpayer must meet two conditions:
(1) owned the timber for over 12 months or (2) held contract with right to harvest the timber for more than 12 months.
Timber is considered harvested on the date when, in the ordinary course of business, the quantity of felled timber is first definitely determined. This is true whether the timber is cut under contract by a harvester or whether cut by the taxpayer.
For reference, Christmas trees, such as evergreen trees, which are more than 6 years old when severed from their roots and sold for ornamental purposes are included in the term timber.
The taxpayer must treat the disposal of coal (including lignite coal) or iron ore mined in the United States (domestically) as a section 1231 transaction if both the following apply to the taxpayer:
- Coal owned for longer than 12 months before its disposal
- Taxpayer retained an economic interest in the coal or iron ore.
If the taxpayer meets these conditions, the sale or exchange of this asset receives Section 1231 transaction status under Section 631(c).
To receive Section 1231 status, the condemned property must have been held over 12 months and been an asset used in a taxpayer’s trade or business as a capital asset or held as an investment property. The property cannot be held for personal use in order to receive preferential long-term gains treatment.
Casualties and thefts
The casualty or theft must have affected business property, property held for the production of income, or investment property owned by the taxpayer to qualify as a Section 1231 transaction. In accordance with IRC 1231 rules, the property must have been held for longer than 12 months.
However, if the casualty or theft losses are more than casualty or theft gains for a taxpayer, neither the gains nor the losses will enter into the Section 1231 computation.
Sections 1231, 1245 and 1250 property often create confusion when attempting to distinguish between the three. However, the classifications begin to make sense when determining the nature of the gains or losses from the sale of these assets.
- What is 1231 property? Section 1231 assets comprise depreciable personal and real property used in the taxpayer’s trade or business and held for over 12 months (long-term).
- What is 1245 property? Section 1245 property includes all depreciable and tangible personal property, such as furniture and equipment, or other intangible personal property, such as a patent or license, which is subject to amortization.
- What is 1250 property? Section 1250 property includes all real property which is not Section 1245 property.
Section 1231 proceeds net against all other Section 1231 transactions to result in a tax situation preferable to taxpayers: gains receive capital treatment while losses remain ordinary. The best of both worlds.
Sections 1245 and 1250 serve as “recharacterization” provisions, meaning Section 1231 assets which meet the definition of either may potentially have all or a portion or gain from their disposition recharacterized as either ordinary income or capital gain taxed at 25 percent. Segregating between these two provisions does not prove difficult:
- Section 1245 assets are depreciable personal property or amortizable Section 197 intangibles
- Section 1250 assets are real property, where depreciable or not.
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About the Author and Blog
In 2018, I was winding down a stint in investor relations and found myself newly equipped with a CPA, added insight on how investors behave in markets, and a load of free time. My job routinely required extended work hours, complex assignments, and tight deadlines. Seeking to maintain my momentum, I wanted to chase something ambitious.
I chose to start this financial independence blog as my next step, recognizing both the challenge and opportunity. I launched the site with encouragement from my wife as a means to lay out our financial independence journey to reach a Millennial retirement and connect with and help others who share the same goal.
I have not been compensated by any of the companies listed in this post at the time of this writing. Any recommendations made by me are my own. Should you choose to act on them, please see my the disclaimer on my About Young and the Invested page.