Canceled Debt – Is it Taxable or Not?

March 13th, 2010
Canceled Debt – Is it Taxable or Not?
In general, if a debt for which you are personally liable is canceled or forgiven, other than as a gift or bequest, you may have to include the canceled amount in gross income. Depending on the circumstances by which your debt was canceled and the nature of any property associated with the debt, the canceled debt may qualify for an exception to inclusion in gross income, or the canceled debt may result in gross income but the income may be excluded.
A debt includes any indebtedness for which you are liable or which attaches to property you hold. If property is associated with a debt, a cancellation of all or part of the debt may occur as a result of foreclosure proceedings on the property, repossession of the property, your return of the property to the lender, your abandonment of the property, or a principal residence loan modification. Regardless of the factors relating to the cancellation, you must report any taxable amount as ordinary income from the cancellation of debt on Form 1040 or Form 1040NR and associated sub-schedules as advised in IRS Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments.
If a federal government agency or an applicable financial entity cancels or forgives a debt you owe of $600 or more, you should receive a Form 1099-C (PDF), Cancellation of Debt, showing amounts and other information relating to the cancellation. The amount of canceled debt is shown in Box 2 of the form.
Canceled Debts that meet the requirements for any of the following exceptions or exclusions will not be taxable.
Canceled Debt that Qualifies for Exception to Inclusion in Gross Income:
Amounts specifically excluded from income by law such as gifts or bequests
Cancellation of certain qualified student loans
Canceled debt that if paid by a cash basis taxpayer is otherwise deductible
A qualified purchase price reduction given by a seller
Canceled Debt that Qualifies for Exclusion from Gross Income:
Cancellation of qualified principal residence indebtedness
Debt canceled in a Title 11 bankruptcy case
Debt canceled due to insolvency
Cancellation of qualified farm indebtedness
Cancellation of qualified real property business indebtedness
The exclusion for “qualified principal residence indebtedness”, enacted by the 2007 Mortgage Relief Act, now provides additional canceled debt tax relief for many American home owners involved in the mortgage foreclosure crisis currently affecting much of the country. The Act allows taxpayers to exclude up to $2,000,000 of “qualified principal residence indebtedness”.
Generally, if you exclude canceled debt from income under one of the exclusions listed above, you must also reduce your tax attributes (certain credits, losses, and basis of assets) by the amount excluded. You must file Form 982 (PDF), Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment), to report the exclusion and the corresponding reduction of certain tax attributes.
Refer to Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments, for more detailed information regarding; taxability of canceled debt, how to report it, and related exceptions and exclusions. Additional information can also be found in Publication 525, Taxable and Nontaxable Income.
Caution: If you have property that is security for a debt and that property is taken by the lender in full or partial satisfaction of your debt, you will be treated as having sold that property and may have gain or loss as a result. The gain or loss on such a deemed sale of your property is a separate issue from whether any canceled debt also associated with that same property is includable in gross income. See IRS Publication 544, Sales and Other Dispositions of Assets, for detailed information on reporting gain or loss from repossession, foreclosure or abandonment of property.

Canceled Debt – Is it Taxable or Not?

In general, if a debt for which you are personally liable is canceled or forgiven, other than as a gift or bequest, you may have to include the canceled amount in gross income. Depending on the circumstances by which your debt was canceled and the nature of any property associated with the debt, the canceled debt may qualify for an exception to inclusion in gross income, or the canceled debt may result in gross income but the income may be excluded.

A debt includes any indebtedness for which you are liable or which attaches to property you hold. If property is associated with a debt, a cancellation of all or part of the debt may occur as a result of foreclosure proceedings on the property, repossession of the property, your return of the property to the lender, your abandonment of the property, or a principal residence loan modification. Regardless of the factors relating to the cancellation, you must report any taxable amount as ordinary income from the cancellation of debt on Form 1040 or Form 1040NR and associated sub-schedules as advised in IRS Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments.

If a federal government agency or an applicable financial entity cancels or forgives a debt you owe of $600 or more, you should receive a Form 1099-C (PDF), Cancellation of Debt, showing amounts and other information relating to the cancellation. The amount of canceled debt is shown in Box 2 of the form.

Canceled Debts that meet the requirements for any of the following exceptions or exclusions will not be taxable.

Canceled Debt that Qualifies for Exception to Inclusion in Gross Income:

  1. Amounts specifically excluded from income by law such as gifts or bequests
  2. Cancellation of certain qualified student loans
  3. Canceled debt that if paid by a cash basis taxpayer is otherwise deductible
  4. A qualified purchase price reduction given by a seller

Canceled Debt that Qualifies for Exclusion from Gross Income:

  1. Cancellation of qualified principal residence indebtedness
  2. Debt canceled in a Title 11 bankruptcy case
  3. Debt canceled due to insolvency
  4. Cancellation of qualified farm indebtedness
  5. Cancellation of qualified real property business indebtedness

The exclusion for “qualified principal residence indebtedness”, enacted by the 2007 Mortgage Relief Act, now provides additional canceled debt tax relief for many American home owners involved in the mortgage foreclosure crisis currently affecting much of the country. The Act allows taxpayers to exclude up to $2,000,000 of “qualified principal residence indebtedness”.

Generally, if you exclude canceled debt from income under one of the exclusions listed above, you must also reduce your tax attributes (certain credits, losses, and basis of assets) by the amount excluded. You must file Form 982 (PDF), Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment), to report the exclusion and the corresponding reduction of certain tax attributes.

Refer to Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments, for more detailed information regarding; taxability of canceled debt, how to report it, and related exceptions and exclusions. Additional information can also be found in Publication 525, Taxable and Nontaxable Income.

Caution: If you have property that is security for a debt and that property is taken by the lender in full or partial satisfaction of your debt, you will be treated as having sold that property and may have gain or loss as a result. The gain or loss on such a deemed sale of your property is a separate issue from whether any canceled debt also associated with that same property is includable in gross income. See IRS Publication 544, Sales and Other Dispositions of Assets, for detailed information on reporting gain or loss from repossession, foreclosure or abandonment of property.

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Optional Write-off of Certain Tax Preferences

March 10th, 2010
Optional Write-off of Certain Tax Preferences
You can elect to amortize certain tax preference items over an optional period beginning in the tax year in which you incurred the costs. If you make this election there is no AMT adjustment. The applicable costs and the optional recovery periods are as follows:
Circulation costs — 3 years,
Intangible drilling and development costs — 60 months,
Mining exploration and development costs — 10 years, and
Research and experimental costs — 10 years.
How to make the election.   To elect to amortize qualifying costs over the optional recovery period, complete Part VI of Form 4562 and attach a statement containing the following information to your return for the tax year in which the election begins:
Your name, address, and taxpayer identification number; and
The type of cost and the specific amount of the cost for which you are making the election.
Generally, the election must be made on a timely filed return (including extensions) for the tax year in which you incurred the costs. However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). Attach Form 4562 to the amended return and write “Filed pursuant to section 301.9100-2” on Form 4562. File the amended return at the same address you filed the original return.
Revoking the election.   You must obtain consent from the IRS to revoke your election. Your request to revoke the election must be submitted to the IRS in the form of a letter ruling before the end of the tax year in which the optional recovery period ends. The request must contain all of the information necessary to demonstrate the rare and unusual circumstances that would justify granting revocation. If the request for revocation is approved, any unamortized costs are deductible in the year the revocation is effective.

Optional Write-off of Certain Tax Preferences

You can elect to amortize certain tax preference items over an optional period beginning in the tax year in which you incurred the costs. If you make this election there is no AMT adjustment. The applicable costs and the optional recovery periods are as follows:

  • Circulation costs — 3 years,
  • Intangible drilling and development costs — 60 months,
  • Mining exploration and development costs — 10 years, and
  • Research and experimental costs — 10 years.

How to make the election.   To elect to amortize qualifying costs over the optional recovery period, complete Part VI of Form 4562 and attach a statement containing the following information to your return for the tax year in which the election begins:

  • Your name, address, and taxpayer identification number; and
  • The type of cost and the specific amount of the cost for which you are making the election.

Generally, the election must be made on a timely filed return (including extensions) for the tax year in which you incurred the costs. However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). Attach Form 4562 to the amended return and write “Filed pursuant to section 301.9100-2” on Form 4562. File the amended return at the same address you filed the original return.

Revoking the election.   You must obtain consent from the IRS to revoke your election. Your request to revoke the election must be submitted to the IRS in the form of a letter ruling before the end of the tax year in which the optional recovery period ends. The request must contain all of the information necessary to demonstrate the rare and unusual circumstances that would justify granting revocation. If the request for revocation is approved, any unamortized costs are deductible in the year the revocation is effective.

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Research and Experimental Costs

March 6th, 2010
Research and Experimental Costs
You can elect to amortize your research and experimental costs, deduct them as current business expenses, or write them off over a 10-year period. If you elect to amortize these costs, deduct them in equal amounts over 60 months or more. The amortization period begins the month you first receive an economic benefit from the costs. For a definition of “research and experimental costs” and information on deducting them as current business expenses, see chapter 7.
Optional write-off method.   Rather than amortize these costs or deduct them as a current expense, you have the option of deducting (writing off) research and experimental costs ratably over a 10-year period beginning with the tax year in which you incurred the costs.
Costs you can amortize.   You can amortize costs chargeable to a capital account if you meet both the following requirements.
You paid or incurred the costs in your trade or business.
You are not deducting the costs currently.
How to make the election.   To elect to amortize research and experimental costs, complete Part VI of Form 4562 and attach it to your income tax return. Generally, you must file the return by the due date (including extensions). However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). Attach Form 4562 to the amended return and write “Filed pursuant to section 301.9100-2” on Form 4562. File the amended return at the same address you filed the original return.
Your election is binding for the year it is made and for all later years unless you obtain approval from the IRS to change to a different method.

Research and Experimental Costs

You can elect to amortize your research and experimental costs, deduct them as current business expenses, or write them off over a 10-year period. If you elect to amortize these costs, deduct them in equal amounts over 60 months or more. The amortization period begins the month you first receive an economic benefit from the costs. For a definition of “research and experimental costs” and information on deducting them as current business expenses, see chapter 7.

Optional write-off method.   Rather than amortize these costs or deduct them as a current expense, you have the option of deducting (writing off) research and experimental costs ratably over a 10-year period beginning with the tax year in which you incurred the costs.

Costs you can amortize.   You can amortize costs chargeable to a capital account if you meet both the following requirements.

  • You paid or incurred the costs in your trade or business.
  • You are not deducting the costs currently.

How to make the election.   To elect to amortize research and experimental costs, complete Part VI of Form 4562 and attach it to your income tax return. Generally, you must file the return by the due date (including extensions). However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). Attach Form 4562 to the amended return and write “Filed pursuant to section 301.9100-2” on Form 4562. File the amended return at the same address you filed the original return.

Your election is binding for the year it is made and for all later years unless you obtain approval from the IRS to change to a different method.

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Section 197 Intangibles

March 5th, 2010
Section 197 Intangibles
Generally, you may amortize the capitalized costs of “section 197 intangibles” (defined later) ratably over a 15-year period. You must amortize these costs if you hold the section 197 intangibles in connection with your trade or business or in an activity engaged in for the production of income.
You may not be able to amortize section 197 intangibles acquired in a transaction that did not result in a significant change in ownership or use. See Anti-Churning Rules, later.
Your amortization deduction each year is the applicable part of the intangible’s adjusted basis (for purposes of determining gain), figured by amortizing it ratably over 15 years (180 months). The 15-year period begins with the later of:
The month the intangible is acquired, or
The month the trade or business or activity engaged in for the production of income begins.
You cannot deduct amortization for the month you dispose of the intangible.
If you pay or incur an amount that increases the basis of an amortizable section 197 intangible after the 15-year period begins, amortize it over the remainder of the 15-year period beginning with the month the basis increase occurs.
You are not allowed any other depreciation or amortization deduction for an amortizable section 197 intangible.
Tax-exempt use property subject to a lease.   The amortization period for any section 197 intangible leased under a lease agreement entered into after March 12, 2004, to a tax-exempt organization, governmental unit, or foreign person or entity (other than a partnership), shall not be less than 125 percent of the lease term.
Cost attributable to other property.   The rules for section 197 intangibles do not apply to any amount that is included in determining the cost of property that is not a section 197 intangible. For example, if the cost of computer software is not separately stated from the cost of hardware or other tangible property and you consistently treat it as part of the cost of the hardware or other tangible property, these rules do not apply. Similarly, none of the cost of acquiring real property held for the production of rental income is considered the cost of goodwill, going concern value, or any other section 197 intangible.
Section 197 Intangibles Defined
The following assets are section 197 intangibles and must be amortized over 180 months:
Goodwill;
Going concern value;
Workforce in place;
Business books and records, operating systems, or any other information base, including lists or other information concerning current or prospective customers;
A patent, copyright, formula, process, design, pattern, know-how, format, or similar item;
A customer-based intangible;
A supplier-based intangible;
Any item similar to items (3) through (7);
A license, permit, or other right granted by a governmental unit or agency (including issuances and renewals);
A covenant not to compete entered into in connection with the acquisition of an interest in a trade or business; and
Any franchise, trademark, or trade name;
A contract for the use of, or a term interest in, any item in this list.
You cannot amortize any of the intangibles listed in items (1) through (8) that you created rather than acquired unless you created them in acquiring assets that make up a trade or business or a substantial part of a trade or business.
Goodwill.   This is the value of a trade or business based on expected continued customer patronage due to its name, reputation, or any other factor.
Going concern value.   This is the additional value of a trade or business that attaches to property because the property is an integral part of an ongoing business activity. It includes value based on the ability of a business to continue to function and generate income even though there is a change in ownership (but does not include any other section 197 intangible). It also includes value based on the immediate use or availability of an acquired trade or business, such as the use of earnings during any period in which the business would not otherwise be available or operational.
Workforce in place, etc.   This includes the composition of a workforce (for example, its experience, education, or training). It also includes the terms and conditions of employment, whether contractual or otherwise, and any other value placed on employees or any of their attributes.
For example, you must amortize the part of the purchase price of a business that is for the existence of a highly skilled workforce. Also, you must amortize the cost of acquiring an existing employment contract or relationship with employees or consultants.
Business books and records, etc.   This includes the intangible value of technical manuals, training manuals or programs, data files, and accounting or inventory control systems. It also includes the cost of customer lists, subscription lists, insurance expirations, patient or client files, and lists of newspaper, magazine, radio, and television advertisers.
Patents, copyrights, etc.   This includes package design, computer software, and any interest in a film, sound recording, videotape, book, or other similar property, except as discussed later under Assets That Are Not Section 197 Intangibles.
Customer-based intangible.   This is the composition of market, market share, and any other value resulting from the future provision of goods or services because of relationships with customers in the ordinary course of business. For example, you must amortize the part of the purchase price of a business that is for the existence of the following intangibles.
A customer base.
A circulation base.
An undeveloped market or market growth.
Insurance in force.
A mortgage servicing contract.
An investment management contract.
Any other relationship with customers involving the future provision of goods or services.
Accounts receivable or other similar rights to income for goods or services provided to customers before the acquisition of a trade or business are not section 197 intangibles.
Supplier-based intangible.   This is the value resulting from the future acquisition of goods or services used or sold by the business because of business relationships with suppliers.
For example, you must amortize the part of the purchase price of a business that is for the existence of the following intangibles.
A favorable relationship with distributors (such as favorable shelf or display space at a retail outlet).
A favorable credit rating.
A favorable supply contract.
Government-granted license, permit, etc.   This is any right granted by a governmental unit or an agency or instrumentality of a governmental unit. For example, you must amortize the capitalized costs of acquiring (including issuing or renewing) a liquor license, a taxicab medallion or license, or a television or radio broadcasting license.
Covenant not to compete.   Section 197 intangibles include a covenant not to compete (or similar arrangement) entered into in connection with the acquisition of an interest in a trade or business, or a substantial portion of a trade or business. An interest in a trade or business includes an interest in a partnership or a corporation engaged in a trade or business.
An arrangement that requires the former owner to perform services (or to provide property or the use of property) is not similar to a covenant not to compete to the extent the amount paid under the arrangement represents reasonable compensation for those services or for that property or its use.
Franchise, trademark, or trade name.   A franchise, trademark, or trade name is a section 197 intangible. You must amortize its purchase or renewal costs, other than certain contingent payments that you can deduct currently. For information on currently deductible contingent payments, see chapter 11.
Professional sports franchise.   A franchise engaged in professional sports and any intangible assets acquired in connection with acquiring the franchise (including player contracts) is a section 197 intangible amortizable over a 15-year period.
Contract for the use of, or a term interest in, a section 197 intangible.   Section 197 intangibles include any right under a license, contract, or other arrangement providing for the use of any section 197 intangible. It also includes any term interest in any section 197 intangible, whether the interest is outright or in trust.
Assets That Are Not Section 197 Intangibles
The following assets are not section 197 intangibles.
Any interest in a corporation, partnership, trust, or estate.
Any interest under an existing futures contract, foreign currency contract, notional principal contract, interest rate swap, or similar financial contract.
Any interest in land.
Most computer software. (See Computer software, later.)
Any of the following assets not acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.
An interest in a film, sound recording, video tape, book, or similar property.
A right to receive tangible property or services under a contract or from a governmental agency.
An interest in a patent or copyright.
Certain rights that have a fixed duration or amount. (See Rights of fixed duration or amount, later.)
An interest under either of the following.
An existing lease or sublease of tangible property.
A debt that was in existence when the interest was acquired.
A right to service residential mortgages unless the right is acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.
Certain transaction costs incurred by parties to a corporate organization or reorganization in which any part of a gain or loss is not recognized.
Intangible property that is not amortizable under the rules for section 197 intangibles can be depreciated if it meets certain requirements. You generally must use the straight line method over its useful life. For certain intangibles, the depreciation period is specified in the law and regulations. For example, the depreciation period for computer software that is not a section 197 intangible is generally 36 months.
For more information on depreciating intangible property, see Intangible Property under What Method Can You Use To Depreciate Your Property? in chapter 1 of Publication 946.
Computer software.   Section 197 intangibles do not include the following types of computer software.
Software that meets all the following requirements.
It is, or has been, readily available for purchase by the general public.
It is subject to a nonexclusive license.
It has not been substantially modified. This requirement is considered met if the cost of all modifications is not more than the greater of 25% of the price of the publicly available unmodified software or $2,000.
Software that is not acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.
Computer software defined.   Computer software includes all programs designed to cause a computer to perform a desired function. It also includes any database or similar item that is in the public domain and is incidental to the operation of qualifying software.
Rights of fixed duration or amount.   Section 197 intangibles do not include any right under a contract or from a governmental agency if the right is acquired in the ordinary course of a trade or business (or in an activity engaged in for the production of income) but not as part of a purchase of a trade or business and either:
Has a fixed life of less than 15 years, or
Is of a fixed amount that, except for the rules for section 197 intangibles, would be recovered under a method similar to the unit-of-production method of cost recovery.
However, this does not apply to the following intangibles.
Goodwill.
Going concern value.
A covenant not to compete.
A franchise, trademark, or trade name.
A customer-related information base, customer-based intangible, or similar item.
Safe Harbor for Creative Property Costs
If you are engaged in the trade or business of film production, you may be able to amortize the creative property costs for properties not set for production within 3 years of the first capitalized transaction. You may amortize these costs ratably over a 15-year period beginning on the first day of the second half of the tax year in which you properly write off the costs for financial accounting purposes. If, during the 15-year period, you dispose of the creative property rights, you must continue to amortize the costs over the remainder of the 15-year period.
Creative property costs include costs paid or incurred to acquire and develop screenplays, scripts, story outlines, motion picture production rights to books and plays, and other similar properties for purposes of potential future film development, production, and exploitation.
Amortize these costs using the rules of Revenue Procedure 2004-36. For more information, see Revenue Procedure 2004-36, 2004-24 I.R.B. 1063, available at
www.irs.gov/irb/2004-24_IRB/ar16.html.
A change in the treatment of creative property costs is a change in method of accounting.
Anti-Churning Rules
Anti-churning rules prevent you from amortizing most section 197 intangibles if the transaction in which you acquired them did not result in a significant change in ownership or use. These rules apply to goodwill and going concern value, and to any other section 197 intangible that is not otherwise depreciable or amortizable.
Under the anti-churning rules, you cannot use 15-year amortization for the intangible if any of the following conditions apply.
You or a related person (defined later) held or used the intangible at any time from July 25, 1991, through August 10, 1993.
You acquired the intangible from a person who held it at any time during the period in (1) and, as part of the transaction, the user did not change.
You granted the right to use the intangible to a person (or a person related to that person) who held or used it at any time during the period in (1). This applies only if the transaction in which you granted the right and the transaction in which you acquired the intangible are part of a series of related transactions. See Related person, later, for more information.
Exceptions.   The anti-churning rules do not apply in the following situations.
You acquired the intangible from a decedent and its basis was stepped up to its fair market value.
The intangible was amortizable as a section 197 intangible by the seller or transferor you acquired it from. This exception does not apply if the transaction in which you acquired the intangible and the transaction in which the seller or transferor acquired it are part of a series of related transactions.
The gain-recognition exception, discussed later, applies.
Related person.   For purposes of the anti-churning rules, the following are related persons.
An individual and his or her brothers, sisters, half-brothers, half-sisters, spouse, ancestors (parents, grandparents, etc.), and lineal descendants (children, grandchildren, etc.).
A corporation and an individual who owns, directly or indirectly, more than 20% of the value of the corporation’s outstanding stock.
Two corporations that are members of the same controlled group as defined in section 1563(a) of the Internal Revenue Code, except that “more than 20%” is substituted for “at least 80%” in that definition and the determination is made without regard to subsections (a)(4) and (e)(3)(C) of section 1563. (For an exception, see section 1.197-2(h)(6)(iv) of the regulations.)
A trust fiduciary and a corporation if more than 20% of the value of the corporation’s outstanding stock is owned, directly or indirectly, by or for the trust or grantor of the trust.
The grantor and fiduciary, and the fiduciary and beneficiary, of any trust.
The fiduciaries of two different trusts, and the fiduciaries and beneficiaries of two different trusts, if the same person is the grantor of both trusts.
The executor and beneficiary of an estate.
A tax-exempt educational or charitable organization and a person who directly or indirectly controls the organization (or whose family members control it).
A corporation and a partnership if the same persons own more than 20% of the value of the outstanding stock of the corporation and more than 20% of the capital or profits interest in the partnership.
Two S corporations, and an S corporation and a regular corporation, if the same persons own more than 20% of the value of the outstanding stock of each corporation.
Two partnerships if the same persons own, directly or indirectly, more than 20% of the capital or profits interests in both partnerships.
A partnership and a person who owns, directly or indirectly, more than 20% of the capital or profits interests in the partnership.
Two persons who are engaged in trades or businesses under common control (as described in section 41(f)(1) of the Internal Revenue Code).
When to determine relationship.   Persons are treated as related if the relationship existed at the following time.
In the case of a single transaction, immediately before or immediately after the transaction in which the intangible was acquired.
In the case of a series of related transactions (or a series of transactions that comprise a qualified stock purchase under section 338(d)(3) of the Internal Revenue Code), immediately before the earliest transaction or immediately after the last transaction.
Ownership of stock.   In determining whether an individual directly or indirectly owns any of the outstanding stock of a corporation, the following rules apply.
Rule 1.   Stock directly or indirectly owned by or for a corporation, partnership, estate, or trust is considered owned proportionately by or for its shareholders, partners, or beneficiaries.
Rule 2.   An individual is considered to own the stock directly or indirectly owned by or for his or her family. Family includes only brothers and sisters, half-brothers and half-sisters, spouse, ancestors, and lineal descendants.
Rule 3.   An individual owning (other than by applying Rule 2) any stock in a corporation is considered to own the stock directly or indirectly owned by or for his or her partner.
Rule 4.   For purposes of applying Rule 1, 2, or 3, treat stock constructively owned by a person under Rule 1 as actually owned by that person. Do not treat stock constructively owned by an individual under Rule 2 or 3 as owned by the individual for reapplying Rule 2 or 3 to make another person the constructive owner of the stock.
Gain-recognition exception.   This exception to the anti-churning rules applies if the person you acquired the intangible from (the transferor) meets both of the following requirements.
That person would not be related to you (as described under Related person, earlier) if the 20% test for ownership of stock and partnership interests were replaced by a 50% test.
That person chose to recognize gain on the disposition of the intangible and pay income tax on the gain at the highest tax rate. See chapter 2 in Publication 544 for information on making this choice.
If this exception applies, the anti-churning rules apply only to the amount of your adjusted basis in the intangible that is more than the gain recognized by the transferor.
Notification.   If the person you acquired the intangible from chooses to recognize gain under the rules for this exception, that person must notify you in writing by the due date of the return on which the choice is made.
Anti-abuse rule.   You cannot amortize any section 197 intangible acquired in a transaction for which the principal purpose was either of the following.
To avoid the requirement that the intangible be acquired after August 10, 1993.
To avoid any of the anti-churning rules.
More information.   For more information about the anti-churning rules, including additional rules for partnerships, see Regulations section 1.197-2(h).
Incorrect Amount of Amortization Deducted
If you later discover that you deducted an incorrect amount for amortization for a section 197 intangible in any year, you may be able to make a correction for that year by filing an amended return. See Amended Return, next. If you are not allowed to make the correction on an amended return, you can change your accounting method to claim the correct amortization. See Changing Your Accounting Method, later.
Amended Return
If you deducted an incorrect amount for amortization, you can file an amended return to correct the following.
A mathematical error made in any year.
A posting error made in any year.
An amortization deduction for a section 197 intangible for which you have not adopted a method of accounting.
When to file.   If an amended return is allowed, you must file it by the later of the following dates.
3 years from the date you filed your original return for the year in which you did not deduct the correct amount. (A return filed early is considered filed on the due date.)
2 years from the time you paid your tax for that year.
Changing Your Accounting Method
Generally, you must get IRS approval to change your method of accounting. File Form 3115, Application for Change in Accounting Method, to request a change to a permissible method of accounting for amortization.
The following are examples of a change in method of accounting for amortization.
A change in the amortization method, period of recovery, or convention of an amortizable asset.
A change in the accounting for amortizable assets from a single asset account to a multiple asset account (pooling), or vice versa.
A change in the accounting for amortizable assets from one type of multiple asset account to a different type of multiple asset account.
Changes in amortization that are not a change in method of accounting include the following:
A change in computing amortization in the tax year in which your use of the asset changes.
An adjustment in the useful life of an amortizable asset.
Generally, the making of a late amortization election or the revocation of a timely valid amortization election.
Any change in the placed-in-service date of an amortizable asset.
See section 1.446-1(e)(2)(ii)(a) of the Regulations for more information and examples.
Automatic approval.   In some instances, you may be able to get automatic approval from the IRS to change your method of accounting for amortization. For a list of automatic accounting method changes, see the Instructions for Form 3115. Also see the Instructions for Form 3115 for more information on getting approval, automatic approval procedures, and a list of exceptions to the automatic approval process.
For more information, see Revenue Procedure 2006-12 and Revenue Procedure 2008-52 as modified by Announcement 2008-84. See Revenue Procedure 2006-12, 2006-3 I.R.B. 310, available at
www.irs.gov/irb/2006-03_IRB/ar14.html.
See Revenue Procedure 2008-52, 2008-36 I.R.B. 587, available at
www.irs.gov/irb/2008-36_IRB/ar09.html.
See Announcement 2008-84, 2008-38 I.R.B. 748, available at
www.irs.gov/irb/2008-38_IRB/ar14.html.
Disposition of Section 197 Intangibles
A section 197 intangible is treated as depreciable property used in your trade or business. If you held the intangible for more than 1 year, any gain on its disposition, up to the amount of allowable amortization, is ordinary income (section 1245 gain). If multiple section 197 intangibles are disposed of in a single transaction or a series of related transactions, treat all of the section 197 intangibles as if they were a single asset for purposes of determining the amount of gain that is ordinary income. Any remaining gain, or any loss, is a section 1231 gain or loss. If you held the intangible 1 year or less, any gain or loss on its disposition is an ordinary gain or loss. For more information on ordinary or capital gain or loss on business property, see chapter 3 in Publication 544.
Nondeductible loss.   You cannot deduct any loss on the disposition or worthlessness of a section 197 intangible that you acquired in the same transaction (or series of related transactions) as other section 197 intangibles you still have. Instead, increase the adjusted basis of each remaining amortizable section 197 intangible by a proportionate part of the nondeductible loss. Figure the increase by multiplying the nondeductible loss on the disposition of the intangible by the following fraction.
The numerator is the adjusted basis of each remaining intangible on the date of the disposition.
The denominator is the total adjusted bases of all remaining amortizable section 197 intangibles on the date of the disposition.
Covenant not to compete.   A covenant not to compete, or similar arrangement, is not considered disposed of or worthless before you dispose of your entire interest in the trade or business for which you entered into the covenant.
Nonrecognition transfers.   If you acquire a section 197 intangible in a nonrecognition transfer, you are treated as the transferor with respect to the part of your adjusted basis in the intangible that is not more than the transferor’s adjusted basis. You amortize this part of the adjusted basis over the intangible’s remaining amortization period in the hands of the transferor. Nonrecognition transfers include transfers to a corporation, partnership contributions and distributions, like-kind exchanges, and involuntary conversions.
In a like-kind exchange or involuntary conversion of a section 197 intangible, you must continue to amortize the part of your adjusted basis in the acquired intangible that is not more than your adjusted basis in the exchanged or converted intangible over the remaining amortization period of the exchanged or converted intangible. Amortize over a new 15-year period the part of your adjusted basis in the acquired intangible that is more than your adjusted basis in the exchanged or converted intangible.
Example.
You own a section 197 intangible you have amortized for 4 full years. It has a remaining unamortized basis of $30,000. You exchange the asset plus $10,000 for a like-kind section 197 intangible. The nonrecognition provisions of like-kind exchanges apply. You amortize $30,000 of the $40,000 adjusted basis of the acquired intangible over the 11 years remaining in the original 15-year amortization period for the transferred asset. You amortize the other $10,000 of adjusted basis over a new 15-year period.

Section 197 Intangibles

Generally, you may amortize the capitalized costs of “section 197 intangibles” (defined later) ratably over a 15-year period. You must amortize these costs if you hold the section 197 intangibles in connection with your trade or business or in an activity engaged in for the production of income.

You may not be able to amortize section 197 intangibles acquired in a transaction that did not result in a significant change in ownership or use. See Anti-Churning Rules, later.

Your amortization deduction each year is the applicable part of the intangible’s adjusted basis (for purposes of determining gain), figured by amortizing it ratably over 15 years (180 months). The 15-year period begins with the later of:

The month the intangible is acquired, or

The month the trade or business or activity engaged in for the production of income begins.

You cannot deduct amortization for the month you dispose of the intangible.

If you pay or incur an amount that increases the basis of an amortizable section 197 intangible after the 15-year period begins, amortize it over the remainder of the 15-year period beginning with the month the basis increase occurs.

You are not allowed any other depreciation or amortization deduction for an amortizable section 197 intangible.

Tax-exempt use property subject to a lease.   The amortization period for any section 197 intangible leased under a lease agreement entered into after March 12, 2004, to a tax-exempt organization, governmental unit, or foreign person or entity (other than a partnership), shall not be less than 125 percent of the lease term.

Cost attributable to other property.   The rules for section 197 intangibles do not apply to any amount that is included in determining the cost of property that is not a section 197 intangible. For example, if the cost of computer software is not separately stated from the cost of hardware or other tangible property and you consistently treat it as part of the cost of the hardware or other tangible property, these rules do not apply. Similarly, none of the cost of acquiring real property held for the production of rental income is considered the cost of goodwill, going concern value, or any other section 197 intangible.

Section 197 Intangibles Defined

The following assets are section 197 intangibles and must be amortized over 180 months:

Goodwill;

Going concern value;

Workforce in place;

Business books and records, operating systems, or any other information base, including lists or other information concerning current or prospective customers;

A patent, copyright, formula, process, design, pattern, know-how, format, or similar item;

A customer-based intangible;

A supplier-based intangible;

Any item similar to items (3) through (7);

A license, permit, or other right granted by a governmental unit or agency (including issuances and renewals);

A covenant not to compete entered into in connection with the acquisition of an interest in a trade or business; and

Any franchise, trademark, or trade name;

A contract for the use of, or a term interest in, any item in this list.

You cannot amortize any of the intangibles listed in items (1) through (8) that you created rather than acquired unless you created them in acquiring assets that make up a trade or business or a substantial part of a trade or business.

Goodwill.   This is the value of a trade or business based on expected continued customer patronage due to its name, reputation, or any other factor.

Going concern value.   This is the additional value of a trade or business that attaches to property because the property is an integral part of an ongoing business activity. It includes value based on the ability of a business to continue to function and generate income even though there is a change in ownership (but does not include any other section 197 intangible). It also includes value based on the immediate use or availability of an acquired trade or business, such as the use of earnings during any period in which the business would not otherwise be available or operational.

Workforce in place, etc.   This includes the composition of a workforce (for example, its experience, education, or training). It also includes the terms and conditions of employment, whether contractual or otherwise, and any other value placed on employees or any of their attributes.

For example, you must amortize the part of the purchase price of a business that is for the existence of a highly skilled workforce. Also, you must amortize the cost of acquiring an existing employment contract or relationship with employees or consultants.

Business books and records, etc.   This includes the intangible value of technical manuals, training manuals or programs, data files, and accounting or inventory control systems. It also includes the cost of customer lists, subscription lists, insurance expirations, patient or client files, and lists of newspaper, magazine, radio, and television advertisers.

Patents, copyrights, etc.   This includes package design, computer software, and any interest in a film, sound recording, videotape, book, or other similar property, except as discussed later under Assets That Are Not Section 197 Intangibles.

Customer-based intangible.   This is the composition of market, market share, and any other value resulting from the future provision of goods or services because of relationships with customers in the ordinary course of business. For example, you must amortize the part of the purchase price of a business that is for the existence of the following intangibles.

A customer base.

A circulation base.

An undeveloped market or market growth.

Insurance in force.

A mortgage servicing contract.

An investment management contract.

Any other relationship with customers involving the future provision of goods or services.

Accounts receivable or other similar rights to income for goods or services provided to customers before the acquisition of a trade or business are not section 197 intangibles.

Supplier-based intangible.   This is the value resulting from the future acquisition of goods or services used or sold by the business because of business relationships with suppliers.

For example, you must amortize the part of the purchase price of a business that is for the existence of the following intangibles.

A favorable relationship with distributors (such as favorable shelf or display space at a retail outlet).

A favorable credit rating.

A favorable supply contract.

Government-granted license, permit, etc.   This is any right granted by a governmental unit or an agency or instrumentality of a governmental unit. For example, you must amortize the capitalized costs of acquiring (including issuing or renewing) a liquor license, a taxicab medallion or license, or a television or radio broadcasting license.

Covenant not to compete.   Section 197 intangibles include a covenant not to compete (or similar arrangement) entered into in connection with the acquisition of an interest in a trade or business, or a substantial portion of a trade or business. An interest in a trade or business includes an interest in a partnership or a corporation engaged in a trade or business.

An arrangement that requires the former owner to perform services (or to provide property or the use of property) is not similar to a covenant not to compete to the extent the amount paid under the arrangement represents reasonable compensation for those services or for that property or its use.

Franchise, trademark, or trade name.   A franchise, trademark, or trade name is a section 197 intangible. You must amortize its purchase or renewal costs, other than certain contingent payments that you can deduct currently. For information on currently deductible contingent payments, see chapter 11.

Professional sports franchise.   A franchise engaged in professional sports and any intangible assets acquired in connection with acquiring the franchise (including player contracts) is a section 197 intangible amortizable over a 15-year period.

Contract for the use of, or a term interest in, a section 197 intangible.   Section 197 intangibles include any right under a license, contract, or other arrangement providing for the use of any section 197 intangible. It also includes any term interest in any section 197 intangible, whether the interest is outright or in trust.

Assets That Are Not Section 197 Intangibles

The following assets are not section 197 intangibles.

Any interest in a corporation, partnership, trust, or estate.

Any interest under an existing futures contract, foreign currency contract, notional principal contract, interest rate swap, or similar financial contract.

Any interest in land.

Most computer software. (See Computer software, later.)

Any of the following assets not acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.

An interest in a film, sound recording, video tape, book, or similar property.

A right to receive tangible property or services under a contract or from a governmental agency.

An interest in a patent or copyright.

Certain rights that have a fixed duration or amount. (See Rights of fixed duration or amount, later.)

An interest under either of the following.

An existing lease or sublease of tangible property.

A debt that was in existence when the interest was acquired.

A right to service residential mortgages unless the right is acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.

Certain transaction costs incurred by parties to a corporate organization or reorganization in which any part of a gain or loss is not recognized.

Intangible property that is not amortizable under the rules for section 197 intangibles can be depreciated if it meets certain requirements. You generally must use the straight line method over its useful life. For certain intangibles, the depreciation period is specified in the law and regulations. For example, the depreciation period for computer software that is not a section 197 intangible is generally 36 months.

For more information on depreciating intangible property, see Intangible Property under What Method Can You Use To Depreciate Your Property? in chapter 1 of Publication 946.

Computer software.   Section 197 intangibles do not include the following types of computer software.

Software that meets all the following requirements.

It is, or has been, readily available for purchase by the general public.

It is subject to a nonexclusive license.

It has not been substantially modified. This requirement is considered met if the cost of all modifications is not more than the greater of 25% of the price of the publicly available unmodified software or $2,000.

Software that is not acquired in connection with the acquisition of a trade or business or a substantial part of a trade or business.

Computer software defined.   Computer software includes all programs designed to cause a computer to perform a desired function. It also includes any database or similar item that is in the public domain and is incidental to the operation of qualifying software.

Rights of fixed duration or amount.   Section 197 intangibles do not include any right under a contract or from a governmental agency if the right is acquired in the ordinary course of a trade or business (or in an activity engaged in for the production of income) but not as part of a purchase of a trade or business and either:

Has a fixed life of less than 15 years, or

Is of a fixed amount that, except for the rules for section 197 intangibles, would be recovered under a method similar to the unit-of-production method of cost recovery.

However, this does not apply to the following intangibles.

Goodwill.

Going concern value.

A covenant not to compete.

A franchise, trademark, or trade name.

A customer-related information base, customer-based intangible, or similar item.

Safe Harbor for Creative Property Costs

If you are engaged in the trade or business of film production, you may be able to amortize the creative property costs for properties not set for production within 3 years of the first capitalized transaction. You may amortize these costs ratably over a 15-year period beginning on the first day of the second half of the tax year in which you properly write off the costs for financial accounting purposes. If, during the 15-year period, you dispose of the creative property rights, you must continue to amortize the costs over the remainder of the 15-year period.

Creative property costs include costs paid or incurred to acquire and develop screenplays, scripts, story outlines, motion picture production rights to books and plays, and other similar properties for purposes of potential future film development, production, and exploitation.

Amortize these costs using the rules of Revenue Procedure 2004-36. For more information, see Revenue Procedure 2004-36, 2004-24 I.R.B. 1063, available at

www.irs.gov/irb/2004-24_IRB/ar16.html.

A change in the treatment of creative property costs is a change in method of accounting.

Anti-Churning Rules

Anti-churning rules prevent you from amortizing most section 197 intangibles if the transaction in which you acquired them did not result in a significant change in ownership or use. These rules apply to goodwill and going concern value, and to any other section 197 intangible that is not otherwise depreciable or amortizable.

Under the anti-churning rules, you cannot use 15-year amortization for the intangible if any of the following conditions apply.

You or a related person (defined later) held or used the intangible at any time from July 25, 1991, through August 10, 1993.

You acquired the intangible from a person who held it at any time during the period in (1) and, as part of the transaction, the user did not change.

You granted the right to use the intangible to a person (or a person related to that person) who held or used it at any time during the period in (1). This applies only if the transaction in which you granted the right and the transaction in which you acquired the intangible are part of a series of related transactions. See Related person, later, for more information.

Exceptions.   The anti-churning rules do not apply in the following situations.

You acquired the intangible from a decedent and its basis was stepped up to its fair market value.

The intangible was amortizable as a section 197 intangible by the seller or transferor you acquired it from. This exception does not apply if the transaction in which you acquired the intangible and the transaction in which the seller or transferor acquired it are part of a series of related transactions.

The gain-recognition exception, discussed later, applies.

Related person.   For purposes of the anti-churning rules, the following are related persons.

An individual and his or her brothers, sisters, half-brothers, half-sisters, spouse, ancestors (parents, grandparents, etc.), and lineal descendants (children, grandchildren, etc.).

A corporation and an individual who owns, directly or indirectly, more than 20% of the value of the corporation’s outstanding stock.

Two corporations that are members of the same controlled group as defined in section 1563(a) of the Internal Revenue Code, except that “more than 20%” is substituted for “at least 80%” in that definition and the determination is made without regard to subsections (a)(4) and (e)(3)(C) of section 1563. (For an exception, see section 1.197-2(h)(6)(iv) of the regulations.)

A trust fiduciary and a corporation if more than 20% of the value of the corporation’s outstanding stock is owned, directly or indirectly, by or for the trust or grantor of the trust.

The grantor and fiduciary, and the fiduciary and beneficiary, of any trust.

The fiduciaries of two different trusts, and the fiduciaries and beneficiaries of two different trusts, if the same person is the grantor of both trusts.

The executor and beneficiary of an estate.

A tax-exempt educational or charitable organization and a person who directly or indirectly controls the organization (or whose family members control it).

A corporation and a partnership if the same persons own more than 20% of the value of the outstanding stock of the corporation and more than 20% of the capital or profits interest in the partnership.

Two S corporations, and an S corporation and a regular corporation, if the same persons own more than 20% of the value of the outstanding stock of each corporation.

Two partnerships if the same persons own, directly or indirectly, more than 20% of the capital or profits interests in both partnerships.

A partnership and a person who owns, directly or indirectly, more than 20% of the capital or profits interests in the partnership.

Two persons who are engaged in trades or businesses under common control (as described in section 41(f)(1) of the Internal Revenue Code).

When to determine relationship.   Persons are treated as related if the relationship existed at the following time.

In the case of a single transaction, immediately before or immediately after the transaction in which the intangible was acquired.

In the case of a series of related transactions (or a series of transactions that comprise a qualified stock purchase under section 338(d)(3) of the Internal Revenue Code), immediately before the earliest transaction or immediately after the last transaction.

Ownership of stock.   In determining whether an individual directly or indirectly owns any of the outstanding stock of a corporation, the following rules apply.

Rule 1.   Stock directly or indirectly owned by or for a corporation, partnership, estate, or trust is considered owned proportionately by or for its shareholders, partners, or beneficiaries.

Rule 2.   An individual is considered to own the stock directly or indirectly owned by or for his or her family. Family includes only brothers and sisters, half-brothers and half-sisters, spouse, ancestors, and lineal descendants.

Rule 3.   An individual owning (other than by applying Rule 2) any stock in a corporation is considered to own the stock directly or indirectly owned by or for his or her partner.

Rule 4.   For purposes of applying Rule 1, 2, or 3, treat stock constructively owned by a person under Rule 1 as actually owned by that person. Do not treat stock constructively owned by an individual under Rule 2 or 3 as owned by the individual for reapplying Rule 2 or 3 to make another person the constructive owner of the stock.

Gain-recognition exception.   This exception to the anti-churning rules applies if the person you acquired the intangible from (the transferor) meets both of the following requirements.

That person would not be related to you (as described under Related person, earlier) if the 20% test for ownership of stock and partnership interests were replaced by a 50% test.

That person chose to recognize gain on the disposition of the intangible and pay income tax on the gain at the highest tax rate. See chapter 2 in Publication 544 for information on making this choice.

If this exception applies, the anti-churning rules apply only to the amount of your adjusted basis in the intangible that is more than the gain recognized by the transferor.

Notification.   If the person you acquired the intangible from chooses to recognize gain under the rules for this exception, that person must notify you in writing by the due date of the return on which the choice is made.

Anti-abuse rule.   You cannot amortize any section 197 intangible acquired in a transaction for which the principal purpose was either of the following.

To avoid the requirement that the intangible be acquired after August 10, 1993.

To avoid any of the anti-churning rules.

More information.   For more information about the anti-churning rules, including additional rules for partnerships, see Regulations section 1.197-2(h).

Incorrect Amount of Amortization Deducted

If you later discover that you deducted an incorrect amount for amortization for a section 197 intangible in any year, you may be able to make a correction for that year by filing an amended return. See Amended Return, next. If you are not allowed to make the correction on an amended return, you can change your accounting method to claim the correct amortization. See Changing Your Accounting Method, later.

Amended Return

If you deducted an incorrect amount for amortization, you can file an amended return to correct the following.

A mathematical error made in any year.

A posting error made in any year.

An amortization deduction for a section 197 intangible for which you have not adopted a method of accounting.

When to file.   If an amended return is allowed, you must file it by the later of the following dates.

3 years from the date you filed your original return for the year in which you did not deduct the correct amount. (A return filed early is considered filed on the due date.)

2 years from the time you paid your tax for that year.

Changing Your Accounting Method

Generally, you must get IRS approval to change your method of accounting. File Form 3115, Application for Change in Accounting Method, to request a change to a permissible method of accounting for amortization.

The following are examples of a change in method of accounting for amortization.

A change in the amortization method, period of recovery, or convention of an amortizable asset.

A change in the accounting for amortizable assets from a single asset account to a multiple asset account (pooling), or vice versa.

A change in the accounting for amortizable assets from one type of multiple asset account to a different type of multiple asset account.

Changes in amortization that are not a change in method of accounting include the following:

A change in computing amortization in the tax year in which your use of the asset changes.

An adjustment in the useful life of an amortizable asset.

Generally, the making of a late amortization election or the revocation of a timely valid amortization election.

Any change in the placed-in-service date of an amortizable asset.

See section 1.446-1(e)(2)(ii)(a) of the Regulations for more information and examples.

Automatic approval.   In some instances, you may be able to get automatic approval from the IRS to change your method of accounting for amortization. For a list of automatic accounting method changes, see the Instructions for Form 3115. Also see the Instructions for Form 3115 for more information on getting approval, automatic approval procedures, and a list of exceptions to the automatic approval process.

For more information, see Revenue Procedure 2006-12 and Revenue Procedure 2008-52 as modified by Announcement 2008-84. See Revenue Procedure 2006-12, 2006-3 I.R.B. 310, available at

www.irs.gov/irb/2006-03_IRB/ar14.html.

See Revenue Procedure 2008-52, 2008-36 I.R.B. 587, available at

www.irs.gov/irb/2008-36_IRB/ar09.html.

See Announcement 2008-84, 2008-38 I.R.B. 748, available at

www.irs.gov/irb/2008-38_IRB/ar14.html.

Disposition of Section 197 Intangibles

A section 197 intangible is treated as depreciable property used in your trade or business. If you held the intangible for more than 1 year, any gain on its disposition, up to the amount of allowable amortization, is ordinary income (section 1245 gain). If multiple section 197 intangibles are disposed of in a single transaction or a series of related transactions, treat all of the section 197 intangibles as if they were a single asset for purposes of determining the amount of gain that is ordinary income. Any remaining gain, or any loss, is a section 1231 gain or loss. If you held the intangible 1 year or less, any gain or loss on its disposition is an ordinary gain or loss. For more information on ordinary or capital gain or loss on business property, see chapter 3 in Publication 544.

Nondeductible loss.   You cannot deduct any loss on the disposition or worthlessness of a section 197 intangible that you acquired in the same transaction (or series of related transactions) as other section 197 intangibles you still have. Instead, increase the adjusted basis of each remaining amortizable section 197 intangible by a proportionate part of the nondeductible loss. Figure the increase by multiplying the nondeductible loss on the disposition of the intangible by the following fraction.

The numerator is the adjusted basis of each remaining intangible on the date of the disposition.

The denominator is the total adjusted bases of all remaining amortizable section 197 intangibles on the date of the disposition.

Covenant not to compete.   A covenant not to compete, or similar arrangement, is not considered disposed of or worthless before you dispose of your entire interest in the trade or business for which you entered into the covenant.

Nonrecognition transfers.   If you acquire a section 197 intangible in a nonrecognition transfer, you are treated as the transferor with respect to the part of your adjusted basis in the intangible that is not more than the transferor’s adjusted basis. You amortize this part of the adjusted basis over the intangible’s remaining amortization period in the hands of the transferor. Nonrecognition transfers include transfers to a corporation, partnership contributions and distributions, like-kind exchanges, and involuntary conversions.

In a like-kind exchange or involuntary conversion of a section 197 intangible, you must continue to amortize the part of your adjusted basis in the acquired intangible that is not more than your adjusted basis in the exchanged or converted intangible over the remaining amortization period of the exchanged or converted intangible. Amortize over a new 15-year period the part of your adjusted basis in the acquired intangible that is more than your adjusted basis in the exchanged or converted intangible.

Example.

You own a section 197 intangible you have amortized for 4 full years. It has a remaining unamortized basis of $30,000. You exchange the asset plus $10,000 for a like-kind section 197 intangible. The nonrecognition provisions of like-kind exchanges apply. You amortize $30,000 of the $40,000 adjusted basis of the acquired intangible over the 11 years remaining in the original 15-year amortization period for the transferred asset. You amortize the other $10,000 of adjusted basis over a new 15-year period.

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Costs of Organizing a Partnership

March 4th, 2010
Costs of Organizing a Partnership
The costs to organize a partnership are the direct costs of creating the partnership.
Qualifying costs.   You can amortize an organizational cost only if it meets all the following tests.
It is for the creation of the partnership and not for starting or operating the partnership trade or business.
It is chargeable to a capital account.
It could be amortized over the life of the partnership if the partnership had a fixed life.
It is incurred by the due date of the partnership return (excluding extensions) for the first tax year in which the partnership is in business. However, if the partnership uses the cash method of accounting and pays the cost after the end of its first tax year, see Cash method partnership under How To Amortize, later.
It is for a type of item normally expected to benefit the partnership throughout its entire life.
Organizational costs include the following fees.
Legal fees for services incident to the organization of the partnership, such as negotiation and preparation of the partnership agreement.
Accounting fees for services incident to the organization of the partnership.
Filing fees.
Nonqualifying costs.   The following costs cannot be amortized.
The cost of acquiring assets for the partnership or transferring assets to the partnership.
The cost of admitting or removing partners, other than at the time the partnership is first organized.
The cost of making a contract concerning the operation of the partnership trade or business including a contract between a partner and the partnership.
The costs for issuing and marketing interests in the partnership such as brokerage, registration, and legal fees and printing costs. These “syndication fees” are capital expenses that cannot be depreciated or amortized.
Liquidation of partnership.   If a partnership is liquidated before the end of the amortization period, the unamortized amount of qualifying organizational costs can be deducted in the partnership’s final tax year. However, these costs can be deducted only to the extent they qualify as a loss from a business.
How To Amortize
Deduct start-up and organizational costs in equal amounts over the applicable amortization period (discussed earlier). You can choose an amortization period for start-up costs that is different from the period you choose for organizational costs, as long as both are not less than the applicable amortization period. Once you choose an amortization period, you cannot change it.
To figure your deduction, divide your total start-up or organizational costs by the months in the amortization period. The result is the amount you can deduct for each month.
Cash method partnership.   A partnership using the cash method of accounting can deduct an organizational cost only if it has been paid by the end of the tax year. However, any cost the partnership could have deducted as an organizational cost in an earlier tax year (if it had been paid that year) can be deducted in the tax year of payment.
How To Make the Election
To elect to amortize start-up or organizational costs, you must complete and attach Form 4562 and an accompanying statement (explained later) to your return for the first tax year you are in business. If you have both start-up and organizational costs, attach a separate statement to your return for each type of cost.
Generally, you must file the return by the due date (including any extensions). However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). For more information, see the instructions for Part VI of Form 4562.
Once you make the election to amortize start-up or organizational costs, you cannot revoke it.
If your business is organized as a corporation or partnership, only the corporation or partnership can elect to amortize its start-up or organizational costs. A shareholder or partner cannot make this election. You, as a shareholder or partner, cannot amortize any costs you incur in setting up your corporation or partnership. Only the corporation or partnership can amortize these costs.
However, you, as an individual, can elect to amortize costs you incur to investigate an interest in an existing partnership. These costs qualify as business start-up costs if you acquire the partnership interest.
Start-up costs election statement.   If you elect to amortize your start-up costs, attach a separate statement that contains the following information.
A description of the business to which the start-up costs relate.
A description of each start-up cost incurred.
The month your active business began (or was acquired).
The number of months in your amortization period (which is generally 180 months).
Filing the statement early.   You can elect to amortize your start-up costs by filing the statement with a return for any tax year before the year your active business begins. If you file the statement early, the election becomes effective in the month of the tax year your active business begins.
Revised statement.   You can file a revised statement to include any start-up costs not included in your original statement. However, you cannot include on the revised statement any cost you previously treated on your return as a cost other than a start-up cost. You can file the revised statement with a return filed after the return on which you elected to amortize your start-up costs.
Organizational costs election statement.   If you elect to amortize your corporation’s or partnership’s organizational costs, attach a separate statement that contains the following information.
A description of each cost.
The amount of each cost.
The date each cost was incurred.
The month your corporation or partnership began active business (or acquired the business).
The number of months in your amortization period (which is generally 180 months).
Partnerships.   The statement prepared for a cash basis partnership must also indicate the amount paid before the end of the year for each cost.
You do not need to separately list any partnership organizational cost that is less than $10. Instead, you can list the total amount of these costs with the dates the first and last costs were incurred.
After a partnership makes the election to amortize organizational costs, it can later file an amended return to include additional organizational costs not included in the partnership’s original return and statement.

Costs of Organizing a Partnership

The costs to organize a partnership are the direct costs of creating the partnership.

Qualifying costs.   You can amortize an organizational cost only if it meets all the following tests.

  • It is for the creation of the partnership and not for starting or operating the partnership trade or business.
  • It is chargeable to a capital account.
  • It could be amortized over the life of the partnership if the partnership had a fixed life.
  • It is incurred by the due date of the partnership return (excluding extensions) for the first tax year in which the partnership is in business. However, if the partnership uses the cash method of accounting and pays the cost after the end of its first tax year, see Cash method partnership under How To Amortize, later.
  • It is for a type of item normally expected to benefit the partnership throughout its entire life.

Organizational costs include the following fees.

  • Legal fees for services incident to the organization of the partnership, such as negotiation and preparation of the partnership agreement.
  • Accounting fees for services incident to the organization of the partnership.
  • Filing fees.

Nonqualifying costs.   The following costs cannot be amortized.

  • The cost of acquiring assets for the partnership or transferring assets to the partnership.
  • The cost of admitting or removing partners, other than at the time the partnership is first organized.
  • The cost of making a contract concerning the operation of the partnership trade or business including a contract between a partner and the partnership.
  • The costs for issuing and marketing interests in the partnership such as brokerage, registration, and legal fees and printing costs. These “syndication fees” are capital expenses that cannot be depreciated or amortized.

Liquidation of partnership.   If a partnership is liquidated before the end of the amortization period, the unamortized amount of qualifying organizational costs can be deducted in the partnership’s final tax year. However, these costs can be deducted only to the extent they qualify as a loss from a business.

How To Amortize

Deduct start-up and organizational costs in equal amounts over the applicable amortization period (discussed earlier). You can choose an amortization period for start-up costs that is different from the period you choose for organizational costs, as long as both are not less than the applicable amortization period. Once you choose an amortization period, you cannot change it.

To figure your deduction, divide your total start-up or organizational costs by the months in the amortization period. The result is the amount you can deduct for each month.

Cash method partnership.   A partnership using the cash method of accounting can deduct an organizational cost only if it has been paid by the end of the tax year. However, any cost the partnership could have deducted as an organizational cost in an earlier tax year (if it had been paid that year) can be deducted in the tax year of payment.

How To Make the Election

To elect to amortize start-up or organizational costs, you must complete and attach Form 4562 and an accompanying statement (explained later) to your return for the first tax year you are in business. If you have both start-up and organizational costs, attach a separate statement to your return for each type of cost.

Generally, you must file the return by the due date (including any extensions). However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the return (excluding extensions). For more information, see the instructions for Part VI of Form 4562.

Once you make the election to amortize start-up or organizational costs, you cannot revoke it.

If your business is organized as a corporation or partnership, only the corporation or partnership can elect to amortize its start-up or organizational costs. A shareholder or partner cannot make this election. You, as a shareholder or partner, cannot amortize any costs you incur in setting up your corporation or partnership. Only the corporation or partnership can amortize these costs.

However, you, as an individual, can elect to amortize costs you incur to investigate an interest in an existing partnership. These costs qualify as business start-up costs if you acquire the partnership interest.

Start-up costs election statement.   If you elect to amortize your start-up costs, attach a separate statement that contains the following information.

  • A description of the business to which the start-up costs relate.
  • A description of each start-up cost incurred.
  • The month your active business began (or was acquired).
  • The number of months in your amortization period (which is generally 180 months).

Filing the statement early.   You can elect to amortize your start-up costs by filing the statement with a return for any tax year before the year your active business begins. If you file the statement early, the election becomes effective in the month of the tax year your active business begins.

Revised statement.   You can file a revised statement to include any start-up costs not included in your original statement. However, you cannot include on the revised statement any cost you previously treated on your return as a cost other than a start-up cost. You can file the revised statement with a return filed after the return on which you elected to amortize your start-up costs.

Organizational costs election statement.   If you elect to amortize your corporation’s or partnership’s organizational costs, attach a separate statement that contains the following information.

  • A description of each cost.
  • The amount of each cost.
  • The date each cost was incurred.
  • The month your corporation or partnership began active business (or acquired the business).
  • The number of months in your amortization period (which is generally 180 months).

Partnerships.   The statement prepared for a cash basis partnership must also indicate the amount paid before the end of the year for each cost.

You do not need to separately list any partnership organizational cost that is less than $10. Instead, you can list the total amount of these costs with the dates the first and last costs were incurred.

After a partnership makes the election to amortize organizational costs, it can later file an amended return to include additional organizational costs not included in the partnership’s original return and statement.

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Costs of Organizing a Corporation

February 27th, 2010
Costs of Organizing a Corporation
Amounts paid to organize a corporation are the direct costs of creating the corporation.
Qualifying costs.   To qualify as an organizational cost it must be:
For the creation of the corporation,
Chargeable to a capital account,
Amortized over the life of the corporation if the corporation had a fixed life, and
Incurred before the end of the first tax year in which the corporation is in business.
A corporation using the cash method of accounting can amortize organizational costs incurred within the first tax year, even if it does not pay them in that year.
Examples of organizational costs include:
The cost of temporary directors.
The cost of organizational meetings.
State incorporation fees.
The cost of legal services.
Nonqualifying costs.   The following items are capital expenses that cannot be amortized:
Costs for issuing and selling stock or securities, such as commissions, professional fees, and printing costs.
Costs associated with the transfer of assets to the corporation.

Costs of Organizing a Corporation

Amounts paid to organize a corporation are the direct costs of creating the corporation.

Qualifying costs.   To qualify as an organizational cost it must be:

  • For the creation of the corporation,
  • Chargeable to a capital account,
  • Amortized over the life of the corporation if the corporation had a fixed life, and
  • Incurred before the end of the first tax year in which the corporation is in business.

A corporation using the cash method of accounting can amortize organizational costs incurred within the first tax year, even if it does not pay them in that year.

Examples of organizational costs include:

  • The cost of temporary directors.
  • The cost of organizational meetings.
  • State incorporation fees.
  • The cost of legal services.

Nonqualifying costs.   The following items are capital expenses that cannot be amortized:

  • Costs for issuing and selling stock or securities, such as commissions, professional fees, and printing costs.
  • Costs associated with the transfer of assets to the corporation.

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What Are Business Start-Up Costs?

February 24th, 2010
What Are Business Start-Up Costs?
Start-up costs are amounts paid or incurred for: (a) creating an active trade or business; or (b) investigating the creation or acquisition of an active trade or business. Start-up costs include amounts paid or incurred in connection with an existing activity engaged in for profit; and for the production of income in anticipation of the activity becoming an active trade or business.
Qualifying costs.   A start-up cost is amortizable if it meets both the following tests.
It is a cost you could deduct if you paid or incurred it to operate an existing active trade or business (in the same field as the one you entered into).
It is a cost you pay or incur before the day your active trade or business begins.
Start-up costs include amounts paid for the following:
An analysis or survey of potential markets, products, labor supply, transportation facilities, etc.
Advertisements for the opening of the business.
Salaries and wages for employees who are being trained and their instructors.
Travel and other necessary costs for securing prospective distributors, suppliers, or customers.
Salaries and fees for executives and consultants, or for similar professional services.
Nonqualifying costs.   Start-up costs do not include deductible interest, taxes, or research and experimental costs. See Research and Experimental Costs, later.
Purchasing an active trade or business.   Amortizable start-up costs for purchasing an active trade or business include only investigative costs incurred in the course of a general search for or preliminary investigation of the business. These are costs that help you decide whether to purchase a business. Costs you incur in an attempt to purchase a specific business are capital expenses that you cannot amortize.
Example.
On June 1st, you hired an accounting firm and a law firm to assist you in the potential purchase of XYZ, Inc. They researched XYZ’s industry and analyzed the financial projections of XYZ, Inc. In September, the law firm prepared and submitted a letter of intent to XYZ, Inc. The letter stated that a binding commitment would result only after a purchase agreement was signed. The law firm and accounting firm continued to provide services including a review of XYZ’s books and records and the preparation of a purchase agreement. On October 22nd, you signed a purchase agreement with XYZ, Inc.
All amounts paid or incurred to investigate the business before October 22nd are amortizable investigative costs. Amounts paid on or after that date relate to the attempt to purchase the business and therefore must be capitalized.
Disposition of business.   If you completely dispose of your business before the end of the amortization period, you can deduct any remaining deferred start-up costs. However, you can deduct these deferred start-up costs only to the extent they qualify as a loss from a business.

What Are Business Start-Up Costs?

Start-up costs are amounts paid or incurred for: (a) creating an active trade or business; or (b) investigating the creation or acquisition of an active trade or business. Start-up costs include amounts paid or incurred in connection with an existing activity engaged in for profit; and for the production of income in anticipation of the activity becoming an active trade or business.

Qualifying costs.   A start-up cost is amortizable if it meets both the following tests.

It is a cost you could deduct if you paid or incurred it to operate an existing active trade or business (in the same field as the one you entered into).

It is a cost you pay or incur before the day your active trade or business begins.

Start-up costs include amounts paid for the following:

An analysis or survey of potential markets, products, labor supply, transportation facilities, etc.

Advertisements for the opening of the business.

Salaries and wages for employees who are being trained and their instructors.

Travel and other necessary costs for securing prospective distributors, suppliers, or customers.

Salaries and fees for executives and consultants, or for similar professional services.

Nonqualifying costs.   Start-up costs do not include deductible interest, taxes, or research and experimental costs. See Research and Experimental Costs, later.

Purchasing an active trade or business.   Amortizable start-up costs for purchasing an active trade or business include only investigative costs incurred in the course of a general search for or preliminary investigation of the business. These are costs that help you decide whether to purchase a business. Costs you incur in an attempt to purchase a specific business are capital expenses that you cannot amortize.

Example.

On June 1st, you hired an accounting firm and a law firm to assist you in the potential purchase of XYZ, Inc. They researched XYZ’s industry and analyzed the financial projections of XYZ, Inc. In September, the law firm prepared and submitted a letter of intent to XYZ, Inc. The letter stated that a binding commitment would result only after a purchase agreement was signed. The law firm and accounting firm continued to provide services including a review of XYZ’s books and records and the preparation of a purchase agreement. On October 22nd, you signed a purchase agreement with XYZ, Inc.

All amounts paid or incurred to investigate the business before October 22nd are amortizable investigative costs. Amounts paid on or after that date relate to the attempt to purchase the business and therefore must be capitalized.

Disposition of business.   If you completely dispose of your business before the end of the amortization period, you can deduct any remaining deferred start-up costs. However, you can deduct these deferred start-up costs only to the extent they qualify as a loss from a business.

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Starting a Business?

February 20th, 2010
Starting a Business
When you start a business, treat all eligible costs you incur before you begin operating the business as capital expenditures which are part of your basis in the business. Generally, you recover costs for particular assets through depreciation deductions. However, you generally cannot recover other costs until you sell the business or otherwise go out of business. See Capital Expenses in chapter 1 for a discussion on how to treat these costs if you do not go into business.
For costs paid or incurred after September 8, 2008, you can deduct a limited amount of start-up and organizational costs. The costs that are not deducted currently can be amortized ratably over a 180-month period. The amortization period starts with the month you begin operating your active trade or business. You are not required to attach a statement to make this election. Once made, the election is irrevocable. See Temporary Regulations sections 1.195-1T, 1.248-1T, and 1.709-1T.
For costs paid after October 22, 2004, and before September 9, 2008, you can elect to deduct a limited amount of business start-up and organizational costs in the year your active trade or business begins. Any costs not deducted can be amortized ratably over a 180-month period, beginning with the month you begin business. If the election is made, you must attach any statement required by Regulations sections 1.195-1(b), 1.248-1(c), and 1.709-1(c). However, you can apply the provisions of Temporary Regulations sections 1.195-1T, 1.248-1T, and 1.709-1T to all business start-up and organizational costs paid or incurred after October 22, 2004, provided the period of limitations on assessment has not expired for the year of the election. Otherwise the provisions under Regulations section 1.195-1(b), 1.248-1(c), and 1.709-1(c) will apply.
For costs paid or incurred before October 23, 2004, you can elect to amortize business start-up and organization costs over an amortization period of 60 months or more. See How To Make the Election later.
The cost must qualify as one of the following.
A business start-up cost.
An organizational cost for a corporation.
An organizational cost for a partnership.

Starting a Business

When you start a business, treat all eligible costs you incur before you begin operating the business as capital expenditures which are part of your basis in the business. Generally, you recover costs for particular assets through depreciation deductions. However, you generally cannot recover other costs until you sell the business or otherwise go out of business. See Capital Expenses in chapter 1 for a discussion on how to treat these costs if you do not go into business.

For costs paid or incurred after September 8, 2008, you can deduct a limited amount of start-up and organizational costs. The costs that are not deducted currently can be amortized ratably over a 180-month period. The amortization period starts with the month you begin operating your active trade or business. You are not required to attach a statement to make this election. Once made, the election is irrevocable. See Temporary Regulations sections 1.195-1T, 1.248-1T, and 1.709-1T.

For costs paid after October 22, 2004, and before September 9, 2008, you can elect to deduct a limited amount of business start-up and organizational costs in the year your active trade or business begins. Any costs not deducted can be amortized ratably over a 180-month period, beginning with the month you begin business. If the election is made, you must attach any statement required by Regulations sections 1.195-1(b), 1.248-1(c), and 1.709-1(c). However, you can apply the provisions of Temporary Regulations sections 1.195-1T, 1.248-1T, and 1.709-1T to all business start-up and organizational costs paid or incurred after October 22, 2004, provided the period of limitations on assessment has not expired for the year of the election. Otherwise the provisions under Regulations section 1.195-1(b), 1.248-1(c), and 1.709-1(c) will apply.

For costs paid or incurred before October 23, 2004, you can elect to amortize business start-up and organization costs over an amortization period of 60 months or more. See How To Make the Election later.

The cost must qualify as one of the following.

A business start-up cost.

An organizational cost for a corporation.

An organizational cost for a partnership.

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EITC Eligibility Rules for 2009 Tax Year Outlined

February 14th, 2010
EITC Eligibility Rules for 2009 Tax Year Outlined
EITC Video: English | ASL
For these and other videos: YouTube/IRSVideos
EITC Audio File for Podcast: English | Spanish
FS-2010-12, January 2010
The Earned Income Tax Credit (EITC) is a tax credit for people who work but do not earn high incomes. The EITC is a valuable tool helping eligible taxpayers to lower their taxes or to claim a refund. The IRS wants all eligible taxpayers to claim this credit.
Many taxpayers who qualify for EITC may also be eligible for free tax preparation, such as IRS Free File, and electronic filing by participating tax professionals and volunteers. Taxpayers and tax professionals should review the rules before attempting to claim the EITC.
To qualify, taxpayers must meet certain requirements and file a tax return, even if they did not earn enough money to be obligated to file a tax return.
The EITC has no effect on certain welfare benefits. In most cases, EITC payments will not be used to determine eligibility for Medicaid, Supplemental Security Income (SSI), food stamps, low-income housing or most Temporary Assistance for Needy Families (TANF) payments. Unemployment benefits are not considered earned income, but must be included in income calculations.
New Rules for 2009 Tax Year
New for tax year 2009, are the additional EITC and income thresholds for a third qualifying child and changes to the uniform definition of a child. For tax years 2009 and 2010, the American Recovery and Reinvestment Act created a new category three or more children, which will provide larger credits to larger families.
The change in the uniform definition of a child adds two new rules to the definition of a “qualifying child.” The child must:
Be younger than the person claiming the child, unless the child is permanently and totally disabled.
Not have filed a joint return other than to claim a refund.
Also new for 2009, if a qualifying child can be claimed by both a parent and another person, the other person must have an AGI higher than the parent in order to claim the child for EITC purposes.
Do You Qualify for EITC?
To qualify, you must meet certain requirements and file a U.S. Individual Income Tax Return. As described below, some EITC rules apply to everyone. There are also special rules for people who have children and for those who do not.
Individuals and families must meet certain general requirements:
You must have earned income.
You must have a valid Social Security number for yourself, your spouse (if married filing jointly) and your qualifying child.
Investment income is limited to $3,100.
Your filing status cannot be “married filing separately.”
Generally, you must be a U.S.citizen or resident alien all year.
You cannot be a qualifying child of another person.
You cannot file Form 2555 or Form 2555-EZ (related to foreign earned income).
Your income cannot exceed certain limitations. For tax year 2009, your earned income and adjusted grow income (AGI) must each be less than:
$43,279 ($48,279) married filing jointly) with three or more qualifying children
$40,295 ($45,295 married filing jointly) with two qualifying children
$35,463 ($40,463 married filing jointly) with one qualifying child
$13,440 ($18,440 married filing jointly) with no qualifying children
If you claim a child, he or she must meet three eligibility tests:
Residency Test — The child must have lived with you in the United Statesfor more than half of 2009.
Relationship Test — The child must be your son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, or a descendant of any of them. Your child includes:
A foster child who was placed with you by an authorized placement agency, or by judgment, decree, or other order of any court of competent jurisdiction
A legally adopted child or a child lawfully placed with you for legal adoption
Age test — At the end of 2009, the child must have been under age 19, a full-time student under age 24, younger than the EITC-claiming taxpayer or any age if permanently and totally disabled at anytime during 2009.
Your qualifying child cannot be used by more than one person to claim EITC. If a child meets the rules to be a qualifying child of more than one person, only one person can treat that child as a qualifying child and claim EITC.
If you don’t have a child, you must meet three additional tests:
At the end of 2009, you must have been at least age 25, but under age 65.
You cannot qualify as the dependent of another person.
You must have lived in the United States for more than half of 2009.
Credit Limits for 2009 Tax Year
Income and family size determine the amount of the EITC. The Earned Income Credit Table, which shows the credit amounts, is included in the Instruction booklet for Form 1040 and in Publication 596, Earned Income Credit.
For tax year 2009, the maximum credit amounts are:
$5,657 with three or more qualifying children
$5,028 with two qualifying children
$3,043 with one qualifying child
$457 with no qualifying children
Combat Zone Pay
Members of the military have the option to include their tax exempt combat zone pay when computing their earned income for EITC. The combat pay remains exempt for federal taxes. However, families should be aware that they must include all of the combat pay or none of it. For example, if the inclusion of combat pay would push a taxpayer’s adjusted gross income above the EITC income limit, taxpayers should leave it out of their EITC calculations. If, however, the inclusion of combat pay would enable a taxpayer to obtain a higher refund, then combat pay should be included.
On-Line Tools
If you are in doubt about your eligibility, you or your tax preparer may use the new EITC Assistant on the IRS Web site. The EITC Assistant, available in English and Spanish, will help you determine your eligibility by answering a few simple questions. For tax professionals, there is an electronic tool kit at EITC Central.
Avoid Common Errors
You are responsible for the accuracy of your tax return. The rules for EITC can be complicated, so you should seek assistance if you are unsure of your eligibility.
Some common EITC errors are:
Claiming a child who is not a qualifying child.
Filing as “single” or “head of household” when the taxpayer actually is married.
Reporting incorrect income amounts.
Missing or incorrect Social Security numbers — for both taxpayers and qualifying children.
The IRS continues to work on ways to reduce these errors. If you receive a letter from the IRS requesting additional information about your EITC, please reply immediately to avoid delaying your EITC refund. If you need assistance or if you have questions, you should call the number included in the IRS letter.
Beware of Scams
A deliberate error can have lasting impact on your eligibility to claim EITC. Beware of scams that claim to increase your EITC refund. Scams that create fictitious qualifying children or inflate income levels to get the maximum EITC could leave you with a penalty. If your EITC claim was reduced or denied after tax year 1996 for any reason other than a mathematical or clerical error, you must file Form 8862, Information To Claim Earned Income Credit After Disallowance, with your next return if you wish to claim the credit.
How to Claim EITC
Publication 596, Earned Income Credit, explains the process. The publication is available on this Web site or by calling 1-800-829-3676. Publication 596 also is available in Spanish. The Instructions for Form 1040 can help you determine your eligibility.
The instructions contain a worksheet and the earned income credit table to help you determine the amount of your credit. If you are claiming the EITC with a qualifying child, you must complete Schedule EIC and attach it to your tax return. Schedule EIC provides IRS with information about your qualifying children, including their names, ages, SSNs, relationship to you and the amount of time they lived with you during the year.
How to Get Tax Help
Taxpayers can find help in determining eligibility by using the new EITC Assistant on the IRS Web site.
Taxpayers who qualify for EITC should explore available free tax preparation services. The IRS provides assistance to low-income taxpayers at more than 400 IRS offices nationwide. We also partner with local community and non-profit organizations to provide free tax return preparation for low-income and elderly taxpayers at more than 12,000 volunteer sites nationwide. Other options include the use of Free File, the free tax preparation and electronic filing program provided by software companies.
Many e-file software providers and tax professionals also provide free services for low income taxpayers. To find a free tax site in your area, call the IRS at 1-800-906-9887.
EITC recipients should remember they can get faster access to their refund by using direct deposit. If you use IRS e-file and direct deposit, you could have your refund in half the time of a paper return.

EITC Eligibility Rules for 2009 Tax Year Outlined

FS-2010-12, January 2010

The Earned Income Tax Credit (EITC) is a tax credit for people who work but do not earn high incomes. The EITC is a valuable tool helping eligible taxpayers to lower their taxes or to claim a refund. The IRS wants all eligible taxpayers to claim this credit.

Many taxpayers who qualify for EITC may also be eligible for free tax preparation, such as IRS Free File, and electronic filing by participating tax professionals and volunteers. Taxpayers and tax professionals should review the rules before attempting to claim the EITC.

To qualify, taxpayers must meet certain requirements and file a tax return, even if they did not earn enough money to be obligated to file a tax return.

The EITC has no effect on certain welfare benefits. In most cases, EITC payments will not be used to determine eligibility for Medicaid, Supplemental Security Income (SSI), food stamps, low-income housing or most Temporary Assistance for Needy Families (TANF) payments. Unemployment benefits are not considered earned income, but must be included in income calculations.

New Rules for 2009 Tax Year

New for tax year 2009, are the additional EITC and income thresholds for a third qualifying child and changes to the uniform definition of a child. For tax years 2009 and 2010, the American Recovery and Reinvestment Act created a new category three or more children, which will provide larger credits to larger families.

The change in the uniform definition of a child adds two new rules to the definition of a “qualifying child.” The child must:

Be younger than the person claiming the child, unless the child is permanently and totally disabled.

Not have filed a joint return other than to claim a refund.

Also new for 2009, if a qualifying child can be claimed by both a parent and another person, the other person must have an AGI higher than the parent in order to claim the child for EITC purposes.

Do You Qualify for EITC?

To qualify, you must meet certain requirements and file a U.S. Individual Income Tax Return. As described below, some EITC rules apply to everyone. There are also special rules for people who have children and for those who do not.

Individuals and families must meet certain general requirements:

You must have earned income.

You must have a valid Social Security number for yourself, your spouse (if married filing jointly) and your qualifying child.

Investment income is limited to $3,100.

Your filing status cannot be “married filing separately.”

Generally, you must be a U.S.citizen or resident alien all year.

You cannot be a qualifying child of another person.

You cannot file Form 2555 or Form 2555-EZ (related to foreign earned income).

Your income cannot exceed certain limitations. For tax year 2009, your earned income and adjusted grow income (AGI) must each be less than:

$43,279 ($48,279) married filing jointly) with three or more qualifying children

$40,295 ($45,295 married filing jointly) with two qualifying children

$35,463 ($40,463 married filing jointly) with one qualifying child

$13,440 ($18,440 married filing jointly) with no qualifying children

If you claim a child, he or she must meet three eligibility tests:

Residency Test — The child must have lived with you in the United Statesfor more than half of 2009.

Relationship Test — The child must be your son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, or a descendant of any of them. Your child includes:

A foster child who was placed with you by an authorized placement agency, or by judgment, decree, or other order of any court of competent jurisdiction

A legally adopted child or a child lawfully placed with you for legal adoption

Age test — At the end of 2009, the child must have been under age 19, a full-time student under age 24, younger than the EITC-claiming taxpayer or any age if permanently and totally disabled at anytime during 2009.

Your qualifying child cannot be used by more than one person to claim EITC. If a child meets the rules to be a qualifying child of more than one person, only one person can treat that child as a qualifying child and claim EITC.

If you don’t have a child, you must meet three additional tests:

At the end of 2009, you must have been at least age 25, but under age 65.

You cannot qualify as the dependent of another person.

You must have lived in the United States for more than half of 2009.

Credit Limits for 2009 Tax Year

Income and family size determine the amount of the EITC. The Earned Income Credit Table, which shows the credit amounts, is included in the Instruction booklet for Form 1040 and in Publication 596, Earned Income Credit.

For tax year 2009, the maximum credit amounts are:

$5,657 with three or more qualifying children

$5,028 with two qualifying children

$3,043 with one qualifying child

$457 with no qualifying children

Combat Zone Pay

Members of the military have the option to include their tax exempt combat zone pay when computing their earned income for EITC. The combat pay remains exempt for federal taxes. However, families should be aware that they must include all of the combat pay or none of it. For example, if the inclusion of combat pay would push a taxpayer’s adjusted gross income above the EITC income limit, taxpayers should leave it out of their EITC calculations. If, however, the inclusion of combat pay would enable a taxpayer to obtain a higher refund, then combat pay should be included.

On-Line Tools

If you are in doubt about your eligibility, you or your tax preparer may use the new EITC Assistant on the IRS Web site. The EITC Assistant, available in English and Spanish, will help you determine your eligibility by answering a few simple questions. For tax professionals, there is an electronic tool kit at EITC Central.

Avoid Common Errors

You are responsible for the accuracy of your tax return. The rules for EITC can be complicated, so you should seek assistance if you are unsure of your eligibility.

Some common EITC errors are:

Claiming a child who is not a qualifying child.

Filing as “single” or “head of household” when the taxpayer actually is married.

Reporting incorrect income amounts.

Missing or incorrect Social Security numbers — for both taxpayers and qualifying children.

The IRS continues to work on ways to reduce these errors. If you receive a letter from the IRS requesting additional information about your EITC, please reply immediately to avoid delaying your EITC refund. If you need assistance or if you have questions, you should call the number included in the IRS letter.

Beware of Scams

A deliberate error can have lasting impact on your eligibility to claim EITC. Beware of scams that claim to increase your EITC refund. Scams that create fictitious qualifying children or inflate income levels to get the maximum EITC could leave you with a penalty. If your EITC claim was reduced or denied after tax year 1996 for any reason other than a mathematical or clerical error, you must file Form 8862, Information To Claim Earned Income Credit After Disallowance, with your next return if you wish to claim the credit.

How to Claim EITC

Publication 596, Earned Income Credit, explains the process. The publication is available on this Web site or by calling 1-800-829-3676. Publication 596 also is available in Spanish. The Instructions for Form 1040 can help you determine your eligibility.

The instructions contain a worksheet and the earned income credit table to help you determine the amount of your credit. If you are claiming the EITC with a qualifying child, you must complete Schedule EIC and attach it to your tax return. Schedule EIC provides IRS with information about your qualifying children, including their names, ages, SSNs, relationship to you and the amount of time they lived with you during the year.

How to Get Tax Help

Taxpayers can find help in determining eligibility by using the new EITC Assistant on the IRS Web site.

Taxpayers who qualify for EITC should explore available free tax preparation services. The IRS provides assistance to low-income taxpayers at more than 400 IRS offices nationwide. We also partner with local community and non-profit organizations to provide free tax return preparation for low-income and elderly taxpayers at more than 12,000 volunteer sites nationwide. Other options include the use of Free File, the free tax preparation and electronic filing program provided by software companies.

Many e-file software providers and tax professionals also provide free services for low income taxpayers. To find a free tax site in your area, call the IRS at 1-800-906-9887.

EITC recipients should remember they can get faster access to their refund by using direct deposit. If you use IRS e-file and direct deposit, you could have your refund in half the time of a paper return.

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What is Self-Employment Tax?

February 13th, 2010
What is Self-Employment Tax?
Self-employment tax (SE tax) is a social security and Medicare tax primarily for individuals who work for themselves. It is similar to the social security and Medicare taxes withheld from the pay of most wage earners.
You figure SE tax yourself using Schedule SE (Form 1040). Social security and Medicare taxes of most wage earners are figured by their employers. Also you can deduct half of your SE tax in figuring your adjusted gross income. Wage earners cannot deduct social security and Medicare taxes.
SE tax rate. The self-employment tax rate is 15.3%. The rate consists of two parts: 12.4% for social security (old-age, survivors, and disability insurance) and 2.9% for Medicare (hospital insurance).
Maximum earnings subject to SE tax. Only the first $106,800 of your combined wages, tips, and net earnings in 2009 is subject to any combination of the 12.4% social security part of SE tax, social security tax, or railroad retirement (tier 1) tax.
All your combined wages, tips, and net earnings in 2009 are subject to any combination of the 2.9% Medicare part of SE tax, social security tax, or railroad retirement (tier 1) tax.
Fiscal year filer. If you use a tax year other than the calendar year, you must use the tax rate and maximum earnings limit in effect at the beginning of your tax year. Even if the tax rate or maximum earnings limit changes during your tax year, continue to use the same rate and limit throughout your tax year.
Self-employment tax deduction. You can deduct half of your SE tax in figuring your adjusted gross income.  This deduction only affects your income tax.  It does not affect either your net earnings from self-employment or your SE tax.
How to Pay Self-Employment Tax
To pay SE tax, you must have a social security number (SSN) or an individual taxpayer identification number (ITIN).  This section explains how to:
Obtain an SSN or ITIN
Pay your SE tax using estimated tax.
Obtaining a Social Security Number. If you never had an SSN, apply for one using Form SS-5, Application for a Social Security Card.  You can get this form at any Social Security office or by calling (800) 772-1213. Download the form from the Social Security Online Web site.
Obtaining an Individual Taxpayer Identification Number. The IRS will issue you an ITIN if you are a nonresident or resident alien and you do not have and are not eligible to get an SSN.  To apply for an ITIN , file Form W-7, Application for IRS Individual Taxpayer Identification Number.
Estimated Taxes
Federal income tax is a pay-as-you-go tax. You must pay the tax as you earn or receive income during the year. You generally have to make estimated tax payments if you expect to owe tax, including SE tax, of $1,000 or more when you file your return. There are two ways to pay as you go: withholding and estimated taxes.  If you are a self-employed individual and do not have income tax withheld, you must make estimated tax payments.
Who Must Pay Self-Employment Tax?
You must pay SE tax and file Schedule SE (Form 1040) if either of the following applies.
Your net earnings from self-employment (excluding church employee income ) were $400 or more.
You had church employee income of $108.28 or more.
Your net earnings from self-employment are based on your earnings subject to SE tax. Most earnings from self-employment are subject to SE tax.  Some earnings from employment (certain earnings that are not subject to social security and Medicare taxes) are subject to SE tax.
If you have earnings subject to SE tax, use Schedule SE to figure your net earnings form self-employment .  Before you figure your net earnings, you generally need to figure your total earnings subject to SE tax.
Note:  The SE tax rules apply no matter how old you are and even if you are already receiving social Security or Medicare.
Are You Self-Employed?
You are self-employed if any of the following apply to you.
You carry on a trade or business as a sole proprietor or an independent contractor.
You are a member of a partnership that carries on a trade or business.
You are otherwise in business for yourself.
Trade or business. A trade or business is generally an activity carried on for a livelihood or in good faith to make a profit. The facts and circumstances of each case determine whether or not an activity is a trade or business. The regularity of activities and transactions and the production of income are important elements. You do not need to actually make a profit to be in a trade or business as long as you have a profit motive. You do need, however, to make ongoing efforts to further the interests of your business.
Part-time business. You do not have to carry on regular full-time business activities to be self-employed. Having a part-time business in addition to your regular job or business also may be self-employment.
Example. You are employed full time as an engineer at the local plant. You fix televisions and radios during the weekends. You have your own shop, equipment, and tools. You get your customers from advertising and word-of-mouth. You are self-employed as the owner of a part-time repair shop.
Sole proprietor. You are a sole proprietor if you own an unincorporated business by yourself, in most cases. However, if you are the sole member of a domestic limited liability company (LLC), you are not a sole proprietor if you elect to treat the LLC as a corporation. For more information on this election and the tax treatment of a foreign LLC, see Form 8832, Entity Classification Election.
Independent contractor. People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to SE tax.
You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.
If an employer-employee relationship exists (regardless of what the relationship is called), you are not an independent contractor and your earnings are generally not subject to SE tax. However, your earnings as an employee may be subject to SE tax under other rules discussed in this section.
For more information on determining whether you are an independent contractor or an employee, refer to the section on  Independent Contractors vs. Employees
Earned Income Tax Credit
If you file a Form 1040 Schedule C, you may be eligible to claim the Earned Income Tax Credit (EITC). Learn more about EITC, or use the EITC Assistant to find out if you are eligible.

What is Self-Employment Tax?

Self-employment tax (SE tax) is a social security and Medicare tax primarily for individuals who work for themselves. It is similar to the social security and Medicare taxes withheld from the pay of most wage earners.

You figure SE tax yourself using Schedule SE (Form 1040). Social security and Medicare taxes of most wage earners are figured by their employers. Also you can deduct half of your SE tax in figuring your adjusted gross income. Wage earners cannot deduct social security and Medicare taxes.

SE tax rate. The self-employment tax rate is 15.3%. The rate consists of two parts: 12.4% for social security (old-age, survivors, and disability insurance) and 2.9% for Medicare (hospital insurance).

Maximum earnings subject to SE tax. Only the first $106,800 of your combined wages, tips, and net earnings in 2009 is subject to any combination of the 12.4% social security part of SE tax, social security tax, or railroad retirement (tier 1) tax.

All your combined wages, tips, and net earnings in 2009 are subject to any combination of the 2.9% Medicare part of SE tax, social security tax, or railroad retirement (tier 1) tax.

Fiscal year filer. If you use a tax year other than the calendar year, you must use the tax rate and maximum earnings limit in effect at the beginning of your tax year. Even if the tax rate or maximum earnings limit changes during your tax year, continue to use the same rate and limit throughout your tax year.

Self-employment tax deduction. You can deduct half of your SE tax in figuring your adjusted gross income.  This deduction only affects your income tax.  It does not affect either your net earnings from self-employment or your SE tax.

How to Pay Self-Employment Tax

To pay SE tax, you must have a social security number (SSN) or an individual taxpayer identification number (ITIN).  This section explains how to:

Obtain an SSN or ITIN

Pay your SE tax using estimated tax.

Obtaining a Social Security Number. If you never had an SSN, apply for one using Form SS-5, Application for a Social Security Card.  You can get this form at any Social Security office or by calling (800) 772-1213. Download the form from the Social Security Online Web site.

Obtaining an Individual Taxpayer Identification Number. The IRS will issue you an ITIN if you are a nonresident or resident alien and you do not have and are not eligible to get an SSN.  To apply for an ITIN , file Form W-7, Application for IRS Individual Taxpayer Identification Number.

Estimated Taxes

Federal income tax is a pay-as-you-go tax. You must pay the tax as you earn or receive income during the year. You generally have to make estimated tax payments if you expect to owe tax, including SE tax, of $1,000 or more when you file your return. There are two ways to pay as you go: withholding and estimated taxes.  If you are a self-employed individual and do not have income tax withheld, you must make estimated tax payments.

Who Must Pay Self-Employment Tax?

You must pay SE tax and file Schedule SE (Form 1040) if either of the following applies.

Your net earnings from self-employment (excluding church employee income ) were $400 or more.

You had church employee income of $108.28 or more.

Your net earnings from self-employment are based on your earnings subject to SE tax. Most earnings from self-employment are subject to SE tax.  Some earnings from employment (certain earnings that are not subject to social security and Medicare taxes) are subject to SE tax.

If you have earnings subject to SE tax, use Schedule SE to figure your net earnings form self-employment .  Before you figure your net earnings, you generally need to figure your total earnings subject to SE tax.

Note:  The SE tax rules apply no matter how old you are and even if you are already receiving social Security or Medicare.

Are You Self-Employed?

You are self-employed if any of the following apply to you.

You carry on a trade or business as a sole proprietor or an independent contractor.

You are a member of a partnership that carries on a trade or business.

You are otherwise in business for yourself.

Trade or business. A trade or business is generally an activity carried on for a livelihood or in good faith to make a profit. The facts and circumstances of each case determine whether or not an activity is a trade or business. The regularity of activities and transactions and the production of income are important elements. You do not need to actually make a profit to be in a trade or business as long as you have a profit motive. You do need, however, to make ongoing efforts to further the interests of your business.

Part-time business. You do not have to carry on regular full-time business activities to be self-employed. Having a part-time business in addition to your regular job or business also may be self-employment.

Example. You are employed full time as an engineer at the local plant. You fix televisions and radios during the weekends. You have your own shop, equipment, and tools. You get your customers from advertising and word-of-mouth. You are self-employed as the owner of a part-time repair shop.

Sole proprietor. You are a sole proprietor if you own an unincorporated business by yourself, in most cases. However, if you are the sole member of a domestic limited liability company (LLC), you are not a sole proprietor if you elect to treat the LLC as a corporation. For more information on this election and the tax treatment of a foreign LLC, see Form 8832, Entity Classification Election.

Independent contractor. People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to SE tax.

You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

If an employer-employee relationship exists (regardless of what the relationship is called), you are not an independent contractor and your earnings are generally not subject to SE tax. However, your earnings as an employee may be subject to SE tax under other rules discussed in this section.

For more information on determining whether you are an independent contractor or an employee, refer to the section on  Independent Contractors vs. Employees

Earned Income Tax Credit

If you file a Form 1040 Schedule C, you may be eligible to claim the Earned Income Tax Credit (EITC). Learn more about EITC, or use the EITC Assistant to find out if you are eligible.

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