§582 — Bad debts, losses, and gains with respect to securities held by financial institutions
12 citing cases
Statute Text — 26 U.S.C. §582
Notwithstanding sections 165(g)(1) and 166(e), subsections (a) and (b) of section 166 (relating to allowance of deduction for bad debts) shall apply in the case of a bank to a debt which is evidenced by a security as defined in section 165(g)(2)(C).
For purposes of section 165(g)(1), where the taxpayer is a bank and owns directly at least 80 percent of each class of stock of another bank, stock in such other bank shall not be treated as a capital asset.
For purposes of this subtitle, in the case of a financial institution referred to in paragraph (2), the sale or exchange of a bond, debenture, note, or certificate or other evidence of indebtedness shall not be considered a sale or exchange of a capital asset. For purposes of the preceding sentence, any regular or residual interest in a REMIC shall be treated as an evidence of indebtedness.
For purposes of paragraph (1), the financial institutions referred to in this paragraph are—
any bank (and any corporation which would be a bank except for the fact it is a foreign corporation),
any financial institution referred to in section 591,
any small business investment company operating under the Small Business Investment Act of 1958, and
any business development corporation.
For purposes of subparagraph (A), the term “business development corporation” means a corporation which was created by or pursuant to an act of a State legislature for purposes of promoting, maintaining, and assisting the economy and industry within such State on a regional or statewide basis by making loans to be used in trades and businesses which would generally not be made by banks within such region or State in the ordinary course of their business (except on the basis of a partial participation), and which is operated primarily for such purposes.
In the case of a foreign corporation referred to in subparagraph (A)(i), paragraph (1) shall only apply to gains and losses which are effectively connected with the conduct of a banking business in the United States.
Treasury Regulations
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Treas. Reg. §1.582-1Bad debts, losses, and gains with respect to securities held by financial institutions
(a) Bad debt deduction for banks. A bank, as defined in section 581, is allowed a deduction for bad debts to the extent and in the manner provided by subsections (a), (b), and (c) of section 166 with respect to a debt which has become worthless in whole or in part and which is evidenced by a security (a bond, debenture, note, certificate, or other evidence of indebtedness to pay a fixed or determinable sum of money) issued by any corporation (including governments and their political subdivisions), with interest coupons or in registered form.
(b) Worthless stock in affiliated bank. For purposes of section 165(g)(1), relating to the deduction for losses involving worthless securities, if the taxpayer is a bank (as defined in section 581) and owns directly at least 80 percent of each class of stock of another bank, stock in such other bank shall not be treated as a capital asset.
(c) Pre-1970 sales and exchanges of bonds, etc., by banks. For taxable years beginning before July 12, 1969, with respect to the taxation under subtitle A of the Code of a bank (as defined in section 581), if the losses of the taxable year from sales or exchanges of bonds, debentures, notes, or certificates, or other evidences of indebtedness, issued by any corporation (including one issued by a government or political subdivision thereof), exceed the gains of the taxable year from such sales or exchanges, no such sale or exchange shall be considered a sale or exchange of a capital asset.
(d) Post-1969 sales and exchanges of securities by financial institutions. For taxable years beginning after July 11, 1969, the sale or exchange of a security is not considered the sale or exchange of a capital asset if such sale or exchange is made by a financial institution to which any of the following sections applies: Section 585 (relating to banks), 586 (relating to small business investment companies and business development corporations), or 593 (relating to mutual savings banks, domestic building and loan associations, and cooperative banks). This paragraph shall apply to determine the character of gain or loss from the sale or exchange of a security notwithstanding any other provision of subtitle A of the Code, such as section 1233 (relating to short sales). However, this paragraph shall have no effect in the determination of whether a security is a capital asset under section 1221 for purposes of applying any other provision of the Code, such as section 1232 (relating to original issue discount). For purposes of this paragraph, a security is a bond, debenture, note, or certificate or other evidence of indebtedness, issued by any person. See paragraphs (e) and (f) of this section for special transitional rules applicable, respectively, to banks and to small business investment companies and business development corporations.
(e) Transition rule for qualifying securities held by banks—(1) In general. Notwithstanding the provisions of paragraph (d) of this section, if the net long-term capital gain from sales and exchanges of qualifying securities exceeds the net short-term capital loss from such sales and exchanges in any taxable year beginning after July 11, 1969, such excess shall be treated as long-term capital gain, but in an amount not to exceed the net gain from sales and exchanges of securities in such year. For purposes of computing such net gain, a capital loss carried to the taxable year under section 1212 shall not be taken into account. See section 1222 and the regulations thereunder for definitions of the terms net long-term capital gain and net short-term capital loss. For purposes of this paragraph:
(i) The term security means a security within the meaning of paragraph (d) of this section.
(ii) The term qualifying security means a security which is held by the bank on July 11, 1969, and continuously thereafter until it is first sold or exchanged by the bank
See also subparagraph (4) of this paragraph for rules under which the time certain securities are held is deemed to include a period of time determined under section 1223 (1) and (2) with respect to such security.
(2) Computation of capital gain or loss. For purposes of this paragraph, the amount of gain or loss from the sale or exchange of a qualifying security treated as capital gain or loss is determined by multiplying the amount of gain or loss recognized from such sale or exchange by a fraction the numerator of which is the number of days before July 12, 1969, that such security was held by the bank and the denominator of which is the sum of the number of days included in the numerator and the number of days the security was held by the bank after July 11, 1969.
(3) Special rules. For purposes of subparagraphs (1) and (2) of this paragraph, the following items are not taken into account:
(i) Any amount treated as original issue discount under section 1232, and
(ii) Any amount which, without regard to section 582(c) and this section, would be treated as gain or loss from the sale or exchange of property which is not a capital asset, such as an amount which is realized from the sale or exchange of a security which is held by a bank as a dealer in securities.
(4) Holding period in certain cases. For purposes of this paragraph:
(i) The time a security received in an exchange is deemed to have been held by a bank includes a period of time determined under section 1223(1) with respect to such security.
(ii) The time a security transferred to a bank from another bank is deemed to have been held by the transferee bank includes a period of time determined under section 1223(2) with respect to such security
For example, if a bank on December 3, 1972, surrendered an obligation of the United States which it held as a capital asset on July 11, 1969, in a transaction to which section 1037 applied, the time during which the newly received obligation is deemed to have been held includes the time during which the surrendered obligation was deemed to have been held by the bank. Because the surrendered obligation was held on July 11, 1969, the newly acquired obligation is deemed to have been held on that date and is a qualifying security. The period during which the surrendered obligation is deemed to have been held is taken into account in computing the fraction determined under subparagraph (2) of this paragraph with respect to the newly received obligation.
(5) Examples. The provisions of this paragraph may be illustrated by the following examples:
(f) Small business investment companies and business development corporations—(1) Election. In the case of a small business investment company or a business development corporation, described in section 586(a), section 582(c) does not apply for taxable years beginning after July 11, 1969, and before July 11, 1974, unless the taxpayer elects that such section shall apply. In the case of a small business investment company, see paragraph (a)(1) of § 1.1243-1 if such an election is made, but see paragraph (a)(2) of § 1.1243-1 if such an election is not made. Such election applies to all such taxable years and, except as provided in subparagraph (3) of this paragraph, is irrevocable. Such election must be made not later than (i) the time, including extensions thereof, prescribed by law for filing the taxpayer's income tax return for its first taxable year beginning after July 11, 1969, or (ii) June 8, 1970, whichever is later.
(2) Manner of making election. An election pursuant to the provisions of this paragraph is made by the taxpayer by a written statement attached to the taxpayer's income tax return (or an amended return) for its first taxable year beginning after July 11, 1969. Such statement shall indicate that the election is made pursuant to section 433(d) of the Tax Reform Act of 1969 (83 Stat. 624). The taxpayer shall attach to its income tax return for each subsequent taxable year to which such election is applicable a statement indicating that the election has been made and the amount to which it applies for such year.
(3) Revocation of election. An election made pursuant to subparagraph (2) of this paragraph shall be irrevocable unless:
(i) A written application for consent to revoke the election, setting forth the reasons therefor, is filed with the Commissioner within 90 days after the permanent regulations relating to section 433(d)(2) of the Tax Reform Act of 1969 (83 Stat. 624) are filed with the Office of the Federal Register, and
(ii) The Commissioner consents to the revocation.
The revocation is effective for all taxable years to which the election applied.
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Treas. Reg. §1.582-1(a)Bad debt deduction for banks.
Bad debt deduction for banks. A bank, as defined in section 581, is allowed a deduction for bad debts to the extent and in the manner provided by subsections (a), (b), and (c) of section 166 with respect to a debt which has become worthless in whole or in part and which is evidenced by a security (a bond, debenture, note, certificate, or other evidence of indebtedness to pay a fixed or determinable sum of money) issued by any corporation (including governments and their political subdivisions), with interest coupons or in registered form.
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Treas. Reg. §1.582-1(b)Worthless stock in affiliated bank.
Worthless stock in affiliated bank. For purposes of section 165(g)(1), relating to the deduction for losses involving worthless securities, if the taxpayer is a bank (as defined in section 581) and owns directly at least 80 percent of each class of stock of another bank, stock in such other bank shall not be treated as a capital asset.
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Treas. Reg. §1.582-1(c)Pre-1970 sales and exchanges of bonds, etc.
Pre-1970 sales and exchanges of bonds, etc., by banks. For taxable years beginning before July 12, 1969, with respect to the taxation under subtitle A of the Code of a bank (as defined in section 581), if the losses of the taxable year from sales or exchanges of bonds, debentures, notes, or certificates, or other evidences of indebtedness, issued by any corporation (including one issued by a government or political subdivision thereof), exceed the gains of the taxable year from such sales or exchanges, no such sale or exchange shall be considered a sale or exchange of a capital asset.
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Treas. Reg. §1.582-1(d)Post-1969 sales and exchanges of securities by financial institutions.
Post-1969 sales and exchanges of securities by financial institutions. For taxable years beginning after July 11, 1969, the sale or exchange of a security is not considered the sale or exchange of a capital asset if such sale or exchange is made by a financial institution to which any of the following sections applies: Section 585 (relating to banks), 586 (relating to small business investment companies and business development corporations), or 593 (relating to mutual savings banks, domestic building and loan associations, and cooperative banks). This paragraph shall apply to determine the character of gain or loss from the sale or exchange of a security notwithstanding any other provision of subtitle A of the Code, such as section 1233 (relating to short sales). However, this paragraph shall have no effect in the determination of whether a security is a capital asset under section 1221 for purposes of applying any other provision of the Code, such as section 1232 (relating to original issue discount). For purposes of this paragraph, a security is a bond, debenture, note, or certificate or other evidence of indebtedness, issued by any person. See paragraphs (e) and (f) of this section for special transitional rules applicable, respectively, to banks and to small business investment companies and business development corporations.
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Treas. Reg. §1.582-1(e)Transition rule for qualifying securities held by banks—(1) In general.
Transition rule for qualifying securities held by banks—(1) In general. Notwithstanding the provisions of paragraph (d) of this section, if the net long-term capital gain from sales and exchanges of qualifying securities exceeds the net short-term capital loss from such sales and exchanges in any taxable year beginning after July 11, 1969, such excess shall be treated as long-term capital gain, but in an amount not to exceed the net gain from sales and exchanges of securities in such year. For purposes of computing such net gain, a capital loss carried to the taxable year under section 1212 shall not be taken into account. See section 1222 and the regulations thereunder for definitions of the terms net long-term capital gain and net short-term capital loss. For purposes of this paragraph:
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Treas. Reg. §1.582-1(f)Small business investment companies and business development corporations—(1) Election.
Small business investment companies and business development corporations—(1) Election. In the case of a small business investment company or a business development corporation, described in section 586(a), section 582(c) does not apply for taxable years beginning after July 11, 1969, and before July 11, 1974, unless the taxpayer elects that such section shall apply. In the case of a small business investment company, see paragraph (a)(1) of § 1.1243-1 if such an election is made, but see paragraph (a)(2) of § 1.1243-1 if such an election is not made. Such election applies to all such taxable years and, except as provided in subparagraph (3) of this paragraph, is irrevocable. Such election must be made not later than (i) the time, including extensions thereof, prescribed by law for filing the taxpayer's income tax return for its first taxable year beginning after July 11, 1969, or (ii) June 8, 1970, whichever is later.
(2) Manner of making election. An election pursuant to the provisions of this paragraph is made by the taxpayer by a written statement attached to the taxpayer's income tax return (or an amended return) for its first taxable year beginning after July 11, 1969. Such statement shall indicate that the election is made pursuant to section 433(d) of the Tax Reform Act of 1969 (83 Stat. 624). The taxpayer shall attach to its income tax return for each subsequent taxable year to which such election is applicable a statement indicating that the election has been made and the amount to which it applies for such year.
(3) Revocation of election. An election made pursuant to subparagraph (2) of this paragraph shall be irrevocable unless:
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Treas. Reg. §1.582-1(i)A written application for consent to revoke the election, setting forth the reasons therefor, is filed with the Commissioner within 90 days after the permanent regulations relating to section 433(d)(2) of the Tax Reform Act of 1969 (83 Stat.
A written application for consent to revoke the election, setting forth the reasons therefor, is filed with the Commissioner within 90 days after the permanent regulations relating to section 433(d)(2) of the Tax Reform Act of 1969 (83 Stat. 624) are filed with the Office of the Federal Register, and
(ii) The Commissioner consents to the revocation.
The revocation is effective for all taxable years to which the election applied.
12 Citing Cases
850–51 (1st Cir. 1932), rev’g in part 21 B.T.A. 1001 (1930); Johnson v. Commissioner, 108 T.C. 448, 475 (1997), aff’d in part, rev’d in part on other grounds, 184 F.3d 786 (8th Cir. 1999); George Gleason Bogert, et al., Bogert’s Trusts and Trustees § 582 (2016). Consequently, we agree with respondent and find that the governing documents concerning Xavana Establishment, along with other documents in the record, show that Xavana Establishment was a trust for federal tax purposes. Now that we have
st of receiving deposits and making loans and discounts. 2. Held, further, because P was not a "bank" within the mean- ing ofI.R.C. sec. 581, it was ineligible to claim ordinary loss deduc- tions on account ofthe worthlessness ofits securities under I.R.C. sec. 582. Henry T. Miller, James A. Bruton III, James T. Fuller III, Peter J. Anthony, Richard A. Husseini, Samara L. Kline, and Jacob L. Walley, for petitioner. H. Barton Thomas, Jr., Teri L. Jackson, Randolph L. Hutter, and Reid M. Huey, for
st of receiving deposits and making loans and discounts. 2. Held, further, because P was not a "bank" within the mean- ing ofI.R.C. sec. 581, it was ineligible to claim ordinary loss deduc- tions on account ofthe worthlessness ofits securities under I.R.C. sec. 582. Henry T. Miller, James A. Bruton III, James T. Fuller III, Peter J. Anthony, Richard A. Husseini, Samara L. Kline, and Jacob L. Walley, for petitioner. H. Barton Thomas, Jr., Teri L. Jackson, Randolph L. Hutter, and Reid M. Huey, for
0-851 (1st Cir. 1932), rev'g in part 21 B.T.A. 1001 (1930); Johnson v. Commissioner, 108 T.C. 448, 475 (1997), aff'd in part, rev'd in part on other grounds, 184 F.3d 786 (8th Cir. 1999); George Gleason Bogert, et al., Bogert's Trusts and Trustees, sec. 582 (2016). -21- Indeed, ifthe plan assets were not held by a "trust," the ESOP could not qualify under ERISA. See 29 U.S.C. sec. 1103(a) (2012) ("[A]ll assets ofan em- ployee benefit plan shall be held in trust by one or more trustees."). Sectio
0-851 (1st Cir. 1932), rev'g in part 21 B.T.A. 1001 (1930); Johnson v. Commissioner, 108 T.C. 448, 475 (1997), aff'd in part, rev'd in part on other grounds, 184 F.3d 786 (8th Cir. 1999); George Gleason Bogert, et al., Bogert's Trusts and Trustees, sec. 582 (2016). -21- Indeed, ifthe plan assets were not held by a "trust," the ESOP could not qualify under ERISA. See 29 U.S.C. sec. 1103(a) (2012) ("[A]ll assets ofan em- ployee benefit plan shall be held in trust by one or more trustees."). Sectio