§1234 — Options to buy or sell
42 cases·8 followed·10 distinguished·1 questioned·2 criticized·1 overruled·20 cited—19% support
Statute Text — 26 U.S.C. §1234
Gain or loss attributable to the sale or exchange of, or loss attributable to failure to exercise, an option to buy or sell property shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the option relates has in the hands of the taxpayer (or would have in the hands of the taxpayer if acquired by him).
For purposes of paragraph (1), if loss is attributable to failure to exercise an option, the option shall be deemed to have been sold or exchanged on the day it expired.
This subsection shall not apply to—
an option which constitutes property described in paragraph (1) of section 1221(a);
in the case of gain attributable to the sale or exchange of an option, any income derived in connection with such option which, without regard to this subsection, is treated as other than gain from the sale or exchange of a capital asset; and
a loss attributable to failure to exercise an option described in section 1233(c).
In the case of the grantor of the option, gain or loss from any closing transaction with respect to, and gain on lapse of, an option in property shall be treated as a gain or loss from the sale or exchange of a capital asset held not more than 1 year.
For purposes of this subsection—
The term “closing transaction” means any termination of the taxpayer’s obligation under an option in property other than through the exercise or lapse of the option.
The term “property” means stocks and securities (including stocks and securities dealt with on a “when issued” basis), commodities, and commodity futures.
This subsection shall not apply to any option granted in the ordinary course of the taxpayer’s trade or business of granting options.
Gain or loss shall be recognized on the exercise of an option on a section 1256 contract (within the meaning of section 1256(b)).
For purposes of subsections (a) and (b), a cash settlement option shall be treated as an option to buy or sell property.
For purposes of subparagraph (A), the term “cash settlement option” means any option which on exercise settles in (or could be settled in) cash or property other than the underlying property.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §1.1234-1 Options to buy or sell
- Treas. Reg. §Treas. Reg. §1.1234-1(a) Sale or exchange—(1) Capital assets.
- Treas. Reg. §Treas. Reg. §1.1234-1(b) Failure to exercise option.
- Treas. Reg. §Treas. Reg. §1.1234-1(c) Certain options to sell property at a fixed price.
- Treas. Reg. §Treas. Reg. §1.1234-1(d) Dealers in options to buy or sell.
- Treas. Reg. §Treas. Reg. §1.1234-1(e) Other exceptions.
- Treas. Reg. §Treas. Reg. §1.1234-1(f) Limitations on effect of section.
- Treas. Reg. §Treas. Reg. §1.1234-1(g) Examples.
- Treas. Reg. §Treas. Reg. §1.1234-2 Special rule for grantors of straddles applicable to certain options granted on or before September 1, 1976
- Treas. Reg. §Treas. Reg. §1.1234-2(a) In general.
- Treas. Reg. §Treas. Reg. §1.1234-2(b) Definitions.
- Treas. Reg. §Treas. Reg. §1.1234-2(c) Special rules in the case of a multiple option.
- Treas. Reg. §Treas. Reg. §1.1234-2(d) Allocation of premium.
- Treas. Reg. §Treas. Reg. §1.1234-2(e) Effective date—(1) In general.
- Treas. Reg. §Treas. Reg. §1.1234-2(f) Illustrations.
- Treas. Reg. §Treas. Reg. §1.1234-2(i) §1.1234-2(i)
- Treas. Reg. §Treas. Reg. §1.1234-3 Special rules for the treatment of grantors of certain options granted after September 1, 1976
- Treas. Reg. §Treas. Reg. §1.1234-3(a) In general.
- Treas. Reg. §Treas. Reg. §1.1234-3(b) Definitions.
- Treas. Reg. §Treas. Reg. §1.1234-3(c) Nonapplicability to broker-dealers.
- Treas. Reg. §Treas. Reg. §1.1234-3(d) Nonapplicability to compensatory options.
- Treas. Reg. §Treas. Reg. §1.1234-3(e) Premium allocation for simultaneously granted options.
- Treas. Reg. §Treas. Reg. §1.1234-3(f) Effective date.
- Treas. Reg. §Treas. Reg. §1.1234-3(i) §1.1234-3(i)
- Treas. Reg. §Treas. Reg. §1.1234-4 Hedging transactions
42 Citing Cases
See 6(...continued) 1234A. As stated, petitioners have not demonstratedthe existence ofa capital asset, and sec. 1234A does not apply.
As the exchanges resulted in the termination of those obligations, we hold that section 1234A(1) applies to the exchanges.
We hold that it is not.
9 the Commissioner determined that the Break Fee payment “is not deductible as an expense under [section] 162 or as an ordinary loss under [section] 165 because the payment of that amount and termination of an agreement resulted in loss that is treated under [section] 1234A as loss from the sale of a capital asset.” Ex. 1-J, at 11. Accordingly, the Commissioner determined that the amount should be “treated as [a] capital loss rather than [an] ordinary deduction.” Id. The Commissioner also made o
the term "sale or other disposition"), Congress has enacted numerous statutes that require capital gain and/or loss in certain situations where the dispositions are technically not sales or exchanges, including, inter alia, section 165(g), applicable to losses for worthless securities, and section 1234A, applicable to certain terminations ofrights or obligations with respect to property that is (or on acquisition would be) a capital asset." Ifa disposition ofa capital asset is not a sale or exch
Commissioner, 994 F.2d at 858, the Court of Appeals for the District of Columbia Circuit erred in its interpretation of the 1981 legislative history accompanying the addition of section 1234A to the Internal Revenue Code.
Under section 1234, unless an option to buy or sell stock constitutes property described in section 1221(1), gain or loss from the sale of the option is treated as gain or loss from the sale of property having the same character as the stock would have in the taxpayer's hands. Sec. 1234(a)(1), (3)(A). Section 1221(1) creates an exception to the definitio
Commissioner, 14 Section 1234A provides that gain or loss attributable to the termination of an option with respect to property which is a capital asset in the hands of the taxpayer is treated as gain or loss from the sale of that capital asset.
The promotional materials characterized Foundation accounts as a "tax reduction" program and stated that the Foundation "was 4(...continued) petitioner's Foundation account; Any reference to a donor advised fund herein does not denote the term as defined in sec: 4966, which establishes a definition of, and certain rules applicable to, a "donor advised fund", effective for periods after those at issue.
taxable year 2002 because Pizza Huti(cid:127)paid that-amount for . the termination of the - 27 - rights of C&F under the Pizza Hut confidentiality agreement wit h respect to the C&F trade secret . In support of that argument , petitioners rely on section 1234A . Section 1234A provides in pertinent part : SEC . 1234A . GAINS OR LOSSES FROM-CERTAIN TERMINATIONS . Gain or loss attributable to the cancellation, lapse, expiration, or other termination of-- (1) a right or obligation * * * with respe
taxable year 2002 because Pizza Huti(cid:127)paid that-amount for . the termination of the - 27 - rights of C&F under the Pizza Hut confidentiality agreement wit h respect to the C&F trade secret . In support of that argument , petitioners rely on section 1234A . Section 1234A provides in pertinent part : SEC . 1234A . GAINS OR LOSSES FROM-CERTAIN TERMINATIONS . Gain or loss attributable to the cancellation, lapse, expiration, or other termination of-- (1) a right or obligation * * * with respe
taxable year 2002 because Pizza Huti(cid:127)paid that-amount for . the termination of the - 27 - rights of C&F under the Pizza Hut confidentiality agreement wit h respect to the C&F trade secret . In support of that argument , petitioners rely on section 1234A . Section 1234A provides in pertinent part : SEC . 1234A . GAINS OR LOSSES FROM-CERTAIN TERMINATIONS . Gain or loss attributable to the cancellation, lapse, expiration, or other termination of-- (1) a right or obligation * * * with respe
taxable year 2002 because Pizza Huti(cid:127)paid that-amount for . the termination of the - 27 - rights of C&F under the Pizza Hut confidentiality agreement wit h respect to the C&F trade secret . In support of that argument , petitioners rely on section 1234A . Section 1234A provides in pertinent part : SEC . 1234A . GAINS OR LOSSES FROM-CERTAIN TERMINATIONS . Gain or loss attributable to the cancellation, lapse, expiration, or other termination of-- (1) a right or obligation * * * with respe
Therefore, the payments are excluded from petitioner's earnings from self-employment as rentals from real estate within the meaning of section 1402(a)(1).8 7 The cost-share rate was 50 percent.
Commissioner, 994 F.2d at 858, the Court of Appeals for the District of Columbia Circuit erred in its interpretation of the 1981 legislative history accompanying the addition of section 1234A to the Internal Revenue Code.
Because the losses were on purchased puts, they purportedly qualified for ordinary loss treatment under section 1234.42 The $163,666 in net short-term capital gain Tandrill reported for 1979 represents the excess of its short-term capital gains of $1,736,366 over its short-term capital losses of $1,572,700.