Reg. § 1.1017-1 Basis reductions following a discharge of indebtedness.
(a) General rule for section 108(b)(2)(E) This applies to basis reductions under section that are required by section (A) or (B) because the taxpayer excluded discharge of indebtedness (COD income) from gross income. A taxpayer must reduce in the following order, to the extent of the excluded COD income (but not below zero), the adjusted bases of property held on the first day of the taxable year following the taxable year that the taxpayer excluded COD income from gross income (in proportion to adjusted basis):
(1) Real property used in a trade or business or held for investment, other than real property described in section , that secured the discharged indebtedness immediately before the discharge;
(2) Personal property used in a trade or business or held for investment, other than inventory, accounts receivable, and notes receivable, that secured the discharged indebtedness immediately before the discharge;
(3) Remaining property used in a trade or business or held for investment, other than inventory, accounts receivable, notes receivable, and real property described in section ;
(4) Inventory, accounts receivable, notes receivable, and real property described in section ; and
(5) Property not used in a trade or business nor held for investment.
(b) Operating rules
(1) Prior tax-attribute reduction The amount of excluded COD income applied to reduce basis does not include any COD income applied to reduce tax attributes under sections (A) through (D) and, if applicable, section . For example, if a taxpayer excludes $100 of COD income from gross income under section and reduces tax attributes by $40 under sections (A) through (D), the taxpayer is required to reduce the adjusted bases of property by $60 ($100−$40) under section .
(2) Multiple discharged indebtednesses If a taxpayer has COD income attributable to more than one discharged indebtedness resulting in the reduction of tax attributes under sections (A) through (D) and, if applicable, section , of this section must be applied by allocating the tax-attribute reductions among the indebtednesses in proportion to the amount of COD income attributable to each discharged indebtedness. For example, if a taxpayer excludes $20 of COD income attributable to secured indebtedness A and excludes $80 of COD income attributable to unsecured indebtedness B (a total exclusion of $100), and if the taxpayer reduces tax attributes by $40 under sections (A) through (D), the taxpayer must reduce the amount of COD income attributable to secured indebtedness A to $12 ($20 − ($20 / $100 × $40)) and must reduce the amount of COD income attributable to unsecured indebtedness B to $48 ($80 − ($80 / $100 × $40)).
(3) Limitation on basis reductions under section 108(b)(2)(E) in bankruptcy or insolvency If COD income arises from a discharge of indebtedness in a title 11 case or while the taxpayer is insolvent, the amount of any basis reduction under section shall not exceed the excess of—
(i) The aggregate of the adjusted bases of property and the amount of money held by the taxpayer immediately after the discharge; over
(ii) The aggregate of the liabilities of the taxpayer immediately after the discharge.
(4) Transactions to which section 381 applies If a taxpayer realizes COD income that is excluded from gross income under section either during or after a taxable year in which the taxpayer is the distributor or transferor of assets in a transaction described in section , the basis of property acquired by the acquiring corporation in the transaction must reflect the reductions required by section and this section. For this purpose, the basis of property of the distributor or transferor corporation immediately prior to the transaction described in section , but after the determination of tax for the year of the distribution or transfer of assets, will be available for reduction under section . However, the basis of stock or securities of the acquiring corporation, if any, received by the taxpayer in exchange for the transferred assets shall not be available for reduction under section . See . This applies to discharges of indebtedness occurring on or after May 10, 2004.
(c) Modification of ordering rules for basis reductions under sections 108(b)(5) and 108(c)
(1) In general The ordering rules prescribed in of this section apply, with appropriate modifications, to basis reductions under sections and (c). Thus, a taxpayer that elects to reduce basis under section may, to the extent that the election applies, reduce only the adjusted basis of property described in , , and of this section and, if an election is made under of this section, of this section. Within , , and of this section, such a taxpayer may reduce only the adjusted bases of depreciable property. A taxpayer that elects to apply section may reduce only the adjusted basis of property described in and of this section and, within and of this section, may reduce only the adjusted bases of depreciable real property. Furthermore, for basis reductions under section , a taxpayer must reduce the adjusted basis of the qualifying real property to the extent of the discharged qualified real property business indebtedness before reducing the adjusted bases of other depreciable real property. The term qualifying real property means real property with respect to which the indebtedness is qualified real property business indebtedness within the meaning of section . See and of this section for elections relating to section property and partnership interests.
(2) Partial basis reductions under section 108(b)(5) If the amount of basis reductions under section is less than the amount of the COD income excluded from gross income under section , the taxpayer must reduce the balance of its tax attributes, including any remaining adjusted bases of depreciable and other property, by following the ordering rules under section . For example, if a taxpayer excludes $100 of COD income from gross income under section and elects to reduce the adjusted bases of depreciable property by $10 under section , the taxpayer must reduce its remaining tax attributes by $90, starting with net operating losses under section .
(3) Modification of fresh start rule for prior basis reductions under section 108(b)(5) After reducing the adjusted bases of depreciable property under section , a taxpayer must compute the limitation on basis reductions under section using the aggregate of the remaining adjusted bases of property. For example, if, immediately after the discharge of indebtedness in a title 11 case, a taxpayer's adjusted bases of property is $100 and its undischarged indebtedness is $70, and if the taxpayer elects to reduce the adjusted bases of depreciable property by $10 under section , section limits any further basis reductions under section to $20 (($100 − $10) − $70).
(d) Changes in security If any property is added or eliminated as security for an indebtedness during the one-year period preceding the discharge of that indebtedness, such addition or elimination shall be disregarded where a principal purpose of the change is to affect the taxpayer's basis reductions under section .
(e) Depreciable property For purposes of this section, the term depreciable property means any property of a character subject to the allowance for depreciation or amortization, but only if the basis reduction would reduce the amount of depreciation or amortization which otherwise would be allowable for the period immediately following such reduction. Thus, for example, a lessor cannot reduce the basis of leased property where the lessee's obligation in respect of the property will restore to the lessor the loss due to depreciation during the term of the lease, since the lessor cannot take depreciation in respect of such property.
(f) Election to treat section 1221(1) real property as depreciable
(1) In general For basis reductions under section and basis reductions relating to qualified farm indebtedness, a taxpayer may elect under sections (3)(E) and (4)(C), respectively, to treat real property described in section as depreciable property. This election is not available, however, for basis reductions under section .
(2) Time and manner To make an election under section (3)(E) or (4)(C), a taxpayer must enter the appropriate information on Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment), and attach the form to a timely filed (including extensions) Federal income tax return for the taxable year in which the taxpayer has COD income that is excluded from gross income under section . An election under this may be revoked only with the consent of the Commissioner.
(g) Partnerships
(1) Partnership COD income For purposes of of this section, a taxpayer must treat a distributive share of a partnership's COD income as attributable to a discharged indebtedness secured by the taxpayer's interest in that partnership.
(2) Partnership interest treated as depreciable property
(i) In general For purposes of making basis reductions, if a taxpayer makes an election under section (or 108(c)), the taxpayer must treat a partnership interest as depreciable property (or depreciable real property) to the extent of the partner's proportionate share of the partnership's basis in depreciable property (or depreciable real property), provided that the partnership consents to a corresponding reduction in the partnership's basis (inside basis) in depreciable property (or depreciable real property) with respect to such partner.
(ii) Request by partner and consent of partnership
(A) In general Except as otherwise provided in this , a taxpayer may choose whether or not to request that a partnership reduce the inside basis of its depreciable property (or depreciable real property) with respect to the taxpayer, and the partnership may grant or withhold such consent, in its sole discretion. A request by the taxpayer must be made before the due date (including extensions) for filing the taxpayer's Federal income tax return for the taxable year in which the taxpayer has COD income that is excluded from gross income under section .
(B) Request for consent required A taxpayer must request a partnership's consent to reduce inside basis if, at the time of the discharge, the taxpayer owns (directly or indirectly) a greater than 50 percent interest in the capital and profits of the partnership, or if reductions to the basis of the taxpayer's depreciable property (or depreciable real property) are being made with respect to the taxpayer's distributive share of COD income of the partnership.
(C) Granting of request required A partnership must consent to reduce its partners' shares of inside basis with respect to a discharged indebtedness if consent is requested with respect to that indebtedness by partners owning (directly or indirectly) an aggregate of more than 80 percent of the capital and profits interests of the partnership or five or fewer partners owning (directly or indirectly) an aggregate of more than 50 percent of the capital and profits interests of the partnership. For example, if there is a cancellation of partnership indebtedness that is secured by real property used in a partnership's trade or business, and if partners owning (in the aggregate) 90 percent of the capital and profits interests of the partnership elect to exclude the COD income under section , the partnership must make the appropriate reductions in those partners' shares of inside basis.
(iii) Partnership consent statement
(A) Partnership requirement A consenting partnership must include with the Form 1065, U.S. Partnership Return of Income, for the taxable year following the year that ends with or within the taxable year the taxpayer excludes COD income from gross income under section , and must provide to the taxpayer on or before the due date of the taxpayer's return (including extensions) for the taxable year in which the taxpayer excludes COD income from gross income, a statement that—
(1) Contains the name, address, and taxpayer identification number of the partnership; and
(2) States the amount of the reduction of the partner's proportionate interest in the adjusted bases of the partnership's depreciable property or depreciable real property, whichever is applicable.
(B) Taxpayer's requirement For taxable years beginning before January 1, 2003, statements described in must be attached to a taxpayer's timely filed (including extensions) Federal income tax return for the taxable year in which the taxpayer has COD income that is excluded from gross income under section . For taxable years beginning after December 31, 2002, taxpayers must retain the statements and keep them available for inspection in the manner required by , but are not required to attach the statements to their returns.
(iv) Partner's share of partnership basis
(A) In general For purposes of this , a partner's proportionate share of the partnership's basis in depreciable property (or depreciable real property) is equal to the sum of—
(1) The partner's section basis adjustments to items of partnership depreciable property (or depreciable real property); and
(2) The common basis depreciation deductions (but not including remedial allocations of depreciation deductions under ) that, under the terms of the partnership agreement effective for the taxable year in which the discharge of indebtedness occurs, are reasonably expected to be allocated to the partner over the property's remaining useful life. The assumptions made by a partnership in determining the reasonably expected allocation of depreciation deductions must be consistent for each partner. For example, a partnership may not treat the same depreciation deductions as being reasonably expected by more than one partner.
(B) Effective date This applies to elections made under sections and on or after December 15, 1999.
(v) Treatment of basis reduction
(A) Basis adjustment The amount of the reduction to the basis of depreciable partnership property constitutes an adjustment to the basis of partnership property with respect to the partner only. No adjustment is made to the common basis of partnership property. Thus, for purposes of income, deduction, gain, loss, and distribution, the partner will have a special basis for those partnership properties the bases of which are adjusted under section and this section.
(B) Recovery of adjustments to basis of partnership property Adjustments to the basis of partnership property under this section are recovered in the manner described in .
(C) Effect of basis reduction Adjustments to the basis of partnership property under this section are treated in the same manner and have the same effect as an adjustment to the basis of partnership property under section . The following example illustrates this :
Example.
(i) A, B, and C are equal partners in partnership PRS, which owns (among other things) Asset 1, an item of depreciable property with a basis of $30,000. A's basis in its partnership interest is $20,000. Under the terms of the partnership agreement, A's share of the depreciation deductions from Asset 1 over its remaining useful life will be $10,000. Under section , A requests, and PRS agrees, to decrease the basis of Asset 1 with respect to A by $10,000.
(ii) In the year following the reduction of basis under section , PRS amends its partnership agreement to provide that items of depreciation and loss from Asset 1 will be allocated equally between B and C. In that year, A's distributive share of the partnership's common basis depreciation deductions from Asset 1 is now $0. Under , the amount of the section basis adjustment that A recovers during the year is $1,000. A will report $1,000 of ordinary income because A's distributive share of the partnership's common basis depreciation deductions from Asset 1 ($0) is insufficient to offset the amount of the section basis adjustment recovered by A during the year ($1,000).
(iii) In the following year, PRS sells Asset 1 for $15,000 and recognizes a $12,000 loss. This loss is allocated equally between B and C, and A's share of the loss is $0. Upon the sale of Asset 1, A recovers its entire remaining section basis adjustment ($9,000). A will report $9,000 of ordinary income.
(D) Effective date This applies to elections made under sections and on or after December 15, 1999.
(3) Partnership basis reduction The rules of this section (including this ) apply in determining the properties to which the partnership's basis reductions must be made.
(h) Special allocation rule for cases to which section 1398 applies If a bankruptcy estate and a taxpayer to whom section applies (concerning only individuals under Chapter 7 or 11 of title 11 of the United States Code) hold property subject to basis reduction under section (2)(E) or (5) on the first day of the taxable year following the taxable year of discharge, the bankruptcy estate must reduce all of the adjusted bases of its property before the taxpayer is required to reduce any adjusted bases of property.
(i) Effective date This section applies to discharges of indebtedness occurring on or after October 22, 1998.
[T.D. 8787, 63 FR 56563, Oct. 22, 1998, as amended by T.D. 8847, 64 FR 69921, Dec. 15, 1999; T.D. 9080, 68 FR 42593, July 18, 2003; T.D. 9100, 68 FR 70705, Dec. 19, 2003; T.D. 9100, 69 FR 5017, Feb. 3, 2004; T.D. 9127, 69 FR 26039, May 11, 2004; T.D. 9300, 71 FR 71042, Dec. 8, 2006]