What’s the difference between capital gains and losses and ordinary gains and losses? The classification will have a major impact on your federal income tax obligations when you sell assets, such as investments, real estate, intangibles and other holdings. The classification of assets is generally straightforward, but the issue can be unclear in some situations. Here’s what you need to know if you plan to sell assets. 

2 Categories of Gains and Losses

For federal income tax purposes, gains and losses can be classified as either: 

1. Capital

These gains and losses result from selling capital assets, which are generally defined as property other than: 

• Inventory, meaning property held primarily for sale to customers in the ordinary course of the taxpayer’s business,
• Business receivables,
• Business real and depreciable property, including rental real estate, and 
• Certain intangible assets, such as copyrights and letters or memoranda held by the taxpayer for whom they were prepared or produced. (See “Beware of Unfavorable Treatment for Sales of Self-Created Intangible Assets,” below.)

Literary, musical and artistic compositions are also generally excluded from the definition of a capital asset. However, under an exception, taxpayers can elect to treat musical compositions or copyrights in musical works as capital assets.

Sales of certain business assets (such as real estate) can result in net Section 1231 gains that are generally treated the same as long-term capital gains (LTCGs) under the federal income tax rules.   

2. Ordinary

Ordinary gains and losses can result from selling certain other types of assets. Sales of certain business assets can result in net Sec. 1231 losses that are generally treated as ordinary losses under the tax rules.

Tax Rate Differential on Gains

The major reason it’s important to distinguish capital gains from ordinary gains is the difference in the applicable tax rates. Under current federal income tax rules, net LTCGs recognized by individual taxpayers are taxed at much lower rates than ordinary gains. Currently, the maximum individual federal rate on net LTCGs is 20%, while the maximum individual rate on ordinary gains is 37%. If the 3.8% net investment income tax (NIIT) applies, the maximum rates are 23.8% and 40.8%, respectively. 

Here are the current income levels at which the maximum federal income tax rate kicks in for net LTCGs:

2024 Taxable Income Thresholds for Maximum 20% Rate on Net LTCGs

If your taxable income, including any capital gains, is below the applicable threshold, you won’t pay more than 15% on any net LTCG. 

Note: The maximum individual federal income tax rate on unrecaptured Section 1250 gains is 25% (28.8% if the 3.8% NIIT applies). Sec. 1250 gains are long-term gains attributable to straight-line real estate depreciation deductions.

For comparison, here are the current income levels at which the maximum federal income tax rate kicks in for ordinary gains:

2024 Taxable Income Thresholds for Maximum 37% Rate on Ordinary Gains

The federal income tax rate on ordinary gains can easily exceed the 15% rate that most individuals will pay on net LTCGs. Here’s a look at when the 22% rate on ordinary gains kicks in for different types of filers:

2024 Taxable Income Thresholds for 22% Rate on Ordinary Gains

At higher income levels, the rates on ordinary gains are 24%, 32% and 35%, before hitting the maximum 37% rate. At higher income levels, ordinary gains also can be hit with the 3.8% NIIT.

Net short-term capital gains recognized by individual taxpayers are taxed at the ordinary income rates. They also may be subject to the 3.8% NIIT at higher income levels. Whenever possible, you should hold appreciated capital assets for more than one year to qualify for the much-lower LTCG tax rates. 

Deductibility of Losses 

It’s also important to distinguish between capital losses and ordinary losses. In general, ordinary losses are currently deductible for federal income tax purposes (unless another set of rules, such as the passive loss rules or the at-risk rules, prevents that favorable outcome). 

In contrast, an individual taxpayer’s deductions for net capital losses are limited to only $3,000 ($1,500 for married individuals who file separately). Any excess net capital loss above the currently deductible amount is carried forward to the following tax year and is subject to the same limitation. 

How to Classify Business Real Estate  

Preferential tax rates apply to only net LTCGs and net Sec. 1231 gains from dispositions of eligible assets. Property held by the taxpayer primarily for sale to customers in the ordinary course of the taxpayer’s business is specifically excluded from this favorable treatment. Such assets are classified as inventory under the tax rules. 

In determining whether real property is inventory, the U.S. Tax Court has identified the following five relevant factors: 

1. The nature of the property’s acquisition,
2. The frequency and continuity of the taxpayer’s property sales,
3. The nature and the extent of the taxpayer’s business,
4. The taxpayer’s sales activities related to the property, and
5. The extent and substantiality of the transaction in question.

Other factors that courts might consider when determining whether real property is inventory include: 

• The nature and purpose of the property’s acquisition,
• The duration of the ownership,
• The extent and nature of the taxpayer’s efforts to sell the property,
• The frequency and substantiality of the sales,
• The extent of subdividing, developing and advertising to increase sales,
• The use of a business office for the property’s sale,
•  The character and degree of control the taxpayer has over any representative selling the property, and
• The time and effort the taxpayer habitually has devoted to property sales. 

No factor (or combination of factors) is controlling. However, the frequency and substantiality of sales is often critical. That’s because the presence of frequent sales generally contradicts any contention that the property is being held for investment, rather than for sale to customers.

Important: Taxpayers have the burden of proving that they fall on the right side of these factors. Under the law, if they fail to meet that burden of proof, the IRS wins the argument. 

What’s Right for Your Situation?

It’s almost always better to be able to characterize a taxable profit as a capital gain, rather than an ordinary gain. On the other hand, it’s almost always better to be able to characterize a taxable loss as an ordinary loss, rather than a capital loss. Before you sell a major asset, consult your tax advisor to determine how to handle your transaction under current tax law.    

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