26 U.S. Code § 1250 - Gain from dispositions of certain depreciable realty

Sections 221 and 236 of the National Housing Act, referred to in subsec. (a)(1)(B)(i), (2)(B)(ii), are classified to sections 1715l and 1715z–1, respectively, of Title 12, Banks and Banking.

The date of the enactment of the Revenue Reconciliation Act of 1990, referred to in subsecs. (a)(1)(B)(i), (2)(B)(ii), (4) and (b)(4), is the date of enactment of Pub. L. 101–508, which was approved Nov. 5, 1990.

Section 8 of the United States Housing Act of 1937, referred to in subsec. (a)(1)(B)(ii), is classified to section 1437f of Title 42, The Public Health and Welfare.

The Housing Act of 1949, referred to in subsec. (a)(1)(B)(iv), is act July 15, 1949, ch. 338, 63 Stat. 413, as amended. Title V of the Housing Act of 1949 is classified generally to subchapter III (§ 1471 et seq.) of chapter 8A of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 1441 of Title 42 and Tables.

The Tax Reform Act of 1976, referred to in subsec. (b)(3), is Pub. L. 94–455, Oct. 4, 1976, 90 Stat. 1520, as amended. Section 1951(a)(4)(A) of the Act repealed section 168 of this title. For complete classification of this Act to the Code, see Tables.

The Tax Reform Act of 1986, referred to in subsec. (b)(3), is Pub. L. 99–514, Oct. 22, 1986, 100 Stat. 2085. Section 242(a) of the Act repealed section 185 of this title. For complete classification of this Act to the Code, see Tables.

The Revenue Reconciliation Act of 1990, referred to in subsec. (b)(3), is title XI of Pub. L. 101–508, Nov. 5, 1990, 104 Stat. 1388–400. Section 11801(a)(13) of the Act repealed section 188 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1 of this title and Tables.

The Economic Recovery Tax Act of 1981, referred to in subsec. (b)(4), is Pub. L. 97–34, Aug. 13, 1981, 95 Stat. 172, as amended. Section 191 of this title was repealed by section 212(d)(1) ofPub. L. 97–34. For complete classification of this Act to the Code, see Tables.

2005—Subsec. (b)(3). Pub. L. 109–135, § 402(h), struck out “or by section 179D” after “190, or 193)”.

Pub. L. 109–58, § 1331(b)(3), inserted “or by section 179D” after “190, or 193)”.

Subsec. (d)(5) to (8). Pub. L. 109–135, § 402(a)(7)(A), redesignated pars. (6) to (8) as (5) to (7), respectively, and struck out heading and text of former par. (5). Text read as follows: “Under regulations prescribed by the Secretary, rules consistent with paragraphs (3) and (4) of this subsection and with subsections (e) and (f) shall apply in the case of transactions described in section 1081 (relating to exchanges in obedience to SEC orders).”

Subsec. (e)(2). Pub. L. 109–135, § 402(a)(7)(B), substituted “or (3)” for “(3), or (5)”.

1998—Subsec. (d)(4)(D). Pub. L. 105–206substituted “section 1033 (b)(2)” for “the last sentence of section 1033 (b)” in introductory provisions.

1997—Subsec. (d)(7) to (10). Pub. L. 105–34, § 312(d)(10)(A), redesignated pars. (9) and (10) as (7) and (8), respectively, and struck out heading and text of former par. (7). Text read as follows: “Subsection (a) shall not apply to a disposition of—

“(A) property to the extent used by the taxpayer as his principal residence (within the meaning of section 1034, relating to rollover of gain on sale of principal residence), and

“(B) property in respect of which the taxpayer meets the age and ownership requirements of section 121 (relating to one-time exclusion of gain from sale of principal residence by individual who has attained age 55) but only to the extent that he meets the use requirements of such section in respect of such property.”

Subsec. (e)(3). Pub. L. 105–34, § 312(d)(10)(B), struck out heading and text of par. (3). Text read as follows: “If the basis of property acquired in a transaction described in paragraph (7) of subsection (d) is determined by reference to the basis in the hands of the taxpayer of other property, then the holding period of the property acquired shall include the holding period of such other property.”

1996—Subsec. (e)(4). Pub. L. 104–188struck out par. (4) which read as follows:

“(4) Qualified low-income housing.—The holding period of any section 1250 property acquired which is described in subsection (d)(8)(E)(i) shall include the holding period of the corresponding element of section 1250 property disposed of.”

1995—Subsec. (d)(5). Pub. L. 104–7struck out “1071 and” before “1081 transactions” in heading and “section 1071 (relating to gain from sale or exchange to effectuate policies of FCC) or” before “section 1081” in text.

1990—Subsec. (a)(1)(B)(i), (2)(B)(ii). Pub. L. 101–508, § 11801(c)(15)(A), which directed the insertion of “(as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990)” after “section 1039 (b)(1)(B)” in pars. (1)(A)(i) and (2)(B)(ii) of subsec. (a), was executed to pars. (1)(B)(i) and (2)(B)(ii) to reflect the probable intent of Congress.

Subsec. (a)(4), (5). Pub. L. 101–508, § 11812(b)(11), added par. (4) and redesignated former par. (4) as (5).

Subsec. (b)(3). Pub. L. 101–508, § 11801(c)(6)(F), substituted “188 (as in effect before its repeal by the Revenue Reconciliation Act of 1990),” for “188,”.

Subsec. (b)(4). Pub. L. 101–508, § 11812(b)(12), substituted “section 167 (k) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990)” for “section 167 (k)” in two places.

Subsec. (d)(3). Pub. L. 101–508, § 11801(c)(8)(I), struck out “371(a), 374(a),” after “332, 351, 361,”.

Subsec. (d)(8). Pub. L. 101–508, § 11801(c)(15)(B), struck out par. (8) which related to the treatment of gain from the disposition of qualified low-income housing.

Subsecs. (g) to (i). Pub. L. 101–508, § 11801(c)(15)(C), redesignatedsubsecs. (h) and (i) as (g) and (h), respectively, and struck out former subsec. (g) which provided special rules for qualified low-income housing.

1989—Subsec. (b)(5)(A). Pub. L. 101–239, § 7831(b)(1), substituted “of property to which section 168 applies” for “of recovery property”.

Subsec. (b)(5)(B). Pub. L. 101–239, § 7831(b)(2), substituted “to which section 168 does not apply” for “which is not recovery property”.

1988—Subsec. (d)(11). Pub. L. 100–647struck out par. (11) which related to section 1245 recovery property.

1986—Subsec. (b)(3). Pub. L. 99–514inserted “(as in effect before its repeal by the Tax Reform Act of 1986)” after “185”.

1984—Subsec. (a)(4). Pub. L. 98–369added par. (4).

1983—Subsec. (b)(1). Pub. L. 97–448, § 102(a)(7)(B), struck out last sentence providing that, for purposes of defining “additional depreciation”, if a useful life (or salvage value) was used in determining the amount allowed as a deduction for any taxable year, such life (or value) was to be used in determining the depreciation adjustments which would have resulted for such year under the straight line method.

Subsec. (b)(5). Pub. L. 97–448, § 102(a)(7)(A), added par. (5).

1981—Subsec. (b)(4). Pub. L. 97–34, § 212(d)(2)(F), inserted “(as in effect before its repeal by the Economic Recovery Tax Act of 1981)” after “section 167 (k) or 191” in two places.

Subsec. (d)(11). Pub. L. 97–34, § 204(e), added par. (11).

1980—Subsec. (a)(1)(B). Pub. L. 96–222inserted “which was allowed under section 167 (k)” at end of last sentence.

Subsec. (b)(3). Pub. L. 96–223inserted reference to section 193.

1978—Subsec. (b)(3). Pub. L. 95–600, § 701(f)(3)(C), struck out reference to section 191.

Subsec. (b)(4). Pub. L. 95–600, § 701(f)(3)(E), inserted reference to amortization deduction, amortization adjustments, and to section 191 in two places.

Subsec. (d)(7)(A). Pub. L. 95–600, § 405(c)(4), substituted “relating to rollover of gain on sale of principal residence” for “relating to sale or exchange of residence”.

Subsec. (d)(7)(B). Pub. L. 95–600, § 404(c)(7), inserted provisions relating to a one-time exclusion and principal residence and substituted “55” for “65”.

1976—Subsec. (a). Pub. L. 94–455, § 202(a), in revising text generally, made the following changes:

(1) Added par. (1).

(2) Redesignated as pars. (2) and (3) existing pars. (1) and (2).

(3) Made the following changes in par. (2): inserted in heading “, and before January 1, 1976”; designated introductory text as subpar. “(A) In general”; inserted therein “and the amount determined under paragraph (1)(A)(ii) exceeds the amount determined under paragraph (1)(A)(i), then”; redesignated as cl. (i) existing subpar. (A); substituted therein “attributable to periods after December 31, 1969, and before January 1, 1976” for “(as defined in subsection (b)(1) or (4) attributable to periods after December 31, 1969”; substituted cl. (ii) and concluding text for subpar. (B) and concluding text which read:

“(B) the excess of—

“(i) the amount realized (in the case of a sale, exchange, or involuntary conversion), or the fair market value of such property (in the case of any other disposition), over

“(ii) the adjusted basis of such property,

(4) Made the following changes in par. (3): substituted in subpar. (A) “determined under paragraph (1)(A)(ii) exceeds the sum of the amounts determined under paragraphs (1)(A)(i) and (2)(A)(i)” for “determined under paragraph (1)(B) exceeds the amount determined under paragraph (1)(A)”; and substituted subpar. (A)(ii) and concluding text for par. (2)(A)(ii), and concluding text which read:

“(ii) the excess of the amount determined under paragraph (1)(B) over the amount determined under paragraph (1)(A),

Subsec. (b)(3). Pub. L. 94–455, §§ 1951(c)(2)(C), 2122(b)(4), 2124(a)(3)(D), inserted “(as in effect before its repeal by the Tax Reform Act of 1976)” after “section 168” and reference to sections 190 and 191.

Subsec. (d)(4)(B). Pub. L. 94–455, § 1901(b)(31)(A), substituted reference to section “1033(a)(2)(A)” for “1033(a)(3)(A)”.

Subsec. (d)(4)(C). Pub. L. 94–455, § 1901(b)(31)(B), substituted reference to section “1033(a)(2)” for “1033(a)(3)”.

Subsec. (d)(4)(D). Pub. L. 94–455, § 1901(b)(31)(B), (E), substituted reference to sections “1033(a)(2)” and “1033(b)” for “1033(a)(3)” and “1033(c)” § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

Subsec. (d)(5), (8)(F)(ii). Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

Subsec. (d)(10). Pub. L. 94–455, § 202(b), added par. (10).

Subsec. (f)(1). Pub. L. 94–455, § 1901(b)(3)(K), substituted “ordinary income” for “gain from the sale or exchange of property which is neither a capital asset nor property described in section 1231”.

Subsec. (f)(2). Pub. L. 94–455, § 202(c)(1), substituted introductory text “the sum of a series of amounts determined for the periods set forth in subsection (a), with the amount for any such period being determined by multiplying” for “the sum of—(A) the amount (if any) determined by multiplying”; substituted subpar. (A) as combined text for prior subpars. (A)(i) and (B)(i) reading “(i) the amount which bears the same ratio to the lower of the amounts specified in subparagraph (A) or (B) of subsection (a)(1) for the section 1250 property as the additional depreciation for such element attributable to periods after December 31, 1969, bears to the sum of the additional depreciation for all elements attributable to periods after December 31, 1969, by” and “(i) the amount which bears the same ratio to the lower of the amounts specified in subsection (a)(2)(A)(i) or (ii) for the section 1250 property as the additional depreciation for such element attributable to periods before January 1, 1970, bears to the sum of the additional depreciation for all elements attributable to periods before January 1, 1970, by”; and substituted subpar. (B) as combined text for prior subpars. (A)(ii) and (B)(ii), inserting therein “for such period” after “for such element”.

Subsec. (g)(1). Pub. L. 94–455, § 1901(b)(3)(K), substituted “ordinary income” for “gain from the sale or exchange of property which is neither a capital asset nor property described in section 1231”.

Subsec. (g)(2). Pub. L. 94–455, § 202(c)(2), substituted “shall be determined in a manner similar to that provided by subsection (f)(2).” for “shall be the amount determined by multiplying—

“(A) the amount which bears the same ratio to the lower of the additional depreciation or the gain recognized for the section 1250 property disposed of as the additional depreciation for such element bears to the sum of the additional depreciation for all elements disposed of, by

“(B) the applicable percentage for such element.

Subsec. (h). Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

1975—Subsec. (a)(1)(C)(ii). Pub. L. 93–625substituted “January 1, 1976” for “January 1, 1975”.

Subsec. (d)(3), (9). Pub. L. 94–81, § 2(b), inserted reference to par. (9) in par. (3), and added par. (9).

1971—Subsec. (b)(3). Pub. L. 92–178inserted reference to section 188.

1969—Subsec. (a). Pub. L. 91–172, § 521(b), modified the recapture rules pertaining to residential housing by allowing a 1 percent per month reduction in the amount to be recaptured as ordinary income after the property has been held for 100 full months, with other real property remaining subject to full recapture, applied the existing recapture rules where the sale of property was subject to a binding contract in existence prior to July 25, 1969, provided that changes in the recapture rules are not to apply in federally assisted projects (such as programs under section 221(d)(3) or 236 of the National Housing Act) or to other publicly assisted housing programs under which the return to the investor is limited on a comparable basis, thereby rendering these projects subject to a recapture of the depreciation in full if the sale occurs in the first 12 months and for a phaseout of the recapture of the excess of accelerated over straight-line depreciation after 20 months, the recapture being reduced at the rate of 1 percent per month until 120 months after which no recapture applies, with such recapture rules to continue to apply only with respect to such property constructed, reconstructed, or acquired before Jan. 1, 1975, and applied new recapture rules to depreciation attributable to periods after Dec. 31, 1969.

Subsec. (b)(4). Pub. L. 91–172, § 512(c), added par. (4).

Subsec. (b)(3). Pub. L. 91–172, § 704(b)(5), inserted reference to sections 169 and 185.

Subsec. (d). Pub. L. 91–172, §§ 521(e)(1), 910(b)(1), substituted “subsection (a)” for “subsection (a)(1)” wherever it appears and added par. (8).

Subsec. (e)(4). Pub. L. 91–172, § 910(b)(2), added par. (4).

Subsec. (f)(1). Pub. L. 91–172, § 521(e)(2)(A), substituted “subsection (a)” for “subsection (a)(1)”.

Subsec. (f)(2). Pub. L. 91–172, § 521(e)(2)(B), redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A) and, in cls. (i) and (ii) as so redesignated, inserted reference to depreciation attributable to periods after Dec. 31, 1969, and added subpar. (B).

Subsecs. (g) to (i). Pub. L. 91–172, § 910(b)(3), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.

Amendments by Pub. L. 109–135effective as if included in the provisions of the Energy Policy Act of 2005, Pub. L. 109–58, to which they relate, but amendment by section 402(a)(7) ofPub. L. 109–135not applicable with respect to any transaction ordered in compliance with the Public Utility Holding Company Act of 1935 (15 U.S.C. 79 et seq.) before its repeal, see section 402(m) ofPub. L. 109–135, set out as an Effective and Termination Dates of 2005 Amendments note under section 23 of this title.

Amendment by Pub. L. 109–58applicable to property placed in service after Dec. 31, 2005, see section 1331(d) ofPub. L. 109–58, set out as an Effective Date note under section 179D of this title.

Amendment by Pub. L. 105–34applicable to sales and exchanges after May 6, 1997, with certain exceptions, see section 312(d) ofPub. L. 105–34, set out as a note under section 121 of this title.

Amendment by Pub. L. 104–188effective, except as otherwise expressly provided, as if included in the provision of the Revenue Reconciliation Act of 1990, Pub. L. 101–508, title XI, to which such amendment relates, see section 1702(i) ofPub. L. 104–188, set out as a note under section 38 of this title.

Amendment by Pub. L. 104–7applicable to sales and exchanges on or after January 17, 1995, and to sales and exchanges before such date if FCC tax certificate with respect to such sale or exchange was issued on or after such date, but not applicable with respect to certain binding contracts, see section 2(d) ofPub. L. 104–7, set out as an Effective Date of Repeal note under section 1071 of this title.

Amendment by section 11812(b)(11), (12) ofPub. L. 101–508applicable to property placed in service after Nov. 5, 1990, but not applicable to any property to which section 168 of this title does not apply by reason of subsec. (f)(5) ofsection 168, and not applicable to rehabilitation expenditures described in section 252(f)(5) ofPub. L. 99–514, see section 11812(c) ofPub. L. 101–508, set out as a note under section 42 of this title.

Amendment by Pub. L. 101–239effective as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 7831(g) ofPub. L. 101–239, set out as a note under section 1 of this title.

Amendment by Pub. L. 100–647effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) ofPub. L. 100–647, set out as a note under section 1 of this title.

Amendment by Pub. L. 99–514applicable to that portion of the basis of any property which is attributable to expenditures paid or incurred after Dec. 31, 1986, except as otherwise provided, see section 242(c) ofPub. L. 99–514, set out as an Effective Date of Repeal note under former section 185 of this title.

Amendment by Pub. L. 98–369effective as if included in the provision of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, to which such amendment relates, see section 715 ofPub. L. 98–369, set out as a note under section 31 of this title.

Amendment by Pub. L. 97–448effective, except as otherwise provided, as if it had been included in the provision of the Economic Recovery Tax Act of 1981, Pub. L. 97–34, to which such amendment relates, see section 109 ofPub. L. 97–448, set out as a note under section 1 of this title.

Amendment by section 204(e) ofPub. L. 97–34applicable to property placed in service after Dec. 31, 1980, in taxable years ending after that date, see section 209(a) ofPub. L. 97–34, set out as an Effective Date note under section 168 of this title.

Amendment by section 212(d)(2)(F) ofPub. L. 97–34applicable to expenditures incurred after Dec. 31, 1981, in taxable years ending after such date, see section 212(e) ofPub. L. 97–34, set out as a note under section 46 of this title.

Amendment by Pub. L. 96–223applicable to taxable years beginning after Dec. 31, 1979, see section 251(b) ofPub. L. 96–223, set out as an Effective Date note under section 193 of this title.

Amendment by Pub. L. 96–222effective, except as otherwise provided, as if it had been included in the provisions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 ofPub. L. 96–222, set out as a note under section 32 of this title.

Amendment by section 404(c)(7) ofPub. L. 95–600applicable to sales or exchanges after July 26, 1978, in taxable years ending after such date, see section 404(d)(1) ofPub. L. 95–600, set out as a note under section 121 of this title.

Amendment by section 405(c)(4) ofPub. L. 95–600applicable to sales and exchanges of residences after July 26, 1978, in taxable years ending after such date, see section 405(d) ofPub. L. 95–600, set out as a note under section 1038 of this title.

Amendment by section 701(f)(3)(C), (E) ofPub. L. 95–600effective as if included within the amendment of subsec. (b)(3) and (4) by section 2124 ofPub. L. 94–455, see section 701(f)(8) ofPub. L. 95–600, set out as an Effective and Termination Dates of 1978 Amendments note under section 167 of this title.

Pub. L. 94–455, title II, § 202(d),Oct. 4, 1976, 90 Stat. 1530, as amended by Pub. L. 99–514, § 2,Oct. 22, 1986, 100 Stat. 2095, provided that: “The amendments made by this section (other than subsection (b)) [amending this section and section 167 of this title] shall apply for taxable years ending after December 31, 1975. The amendment made by subsection (b) [amending this section] shall apply with respect to proceedings (and to operations of law) referred to in section 1250(d)(10) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] which begin after December 31, 1975.”

Amendment by section 1901(b)(3)(K), (31)(A), (B), (E) ofPub. L. 94–455effective for taxable years beginning after Dec. 31, 1976, see section 1901(d) ofPub. L. 94–455, set out as a note under section 2 of this title.

Amendment by section 1951(c)(2)(C) ofPub. L. 94–455applicable to taxable years beginning after Dec. 31, 1976, see section 1951(d) ofPub. L. 94–455, set out as a note under section 72 of this title.

Amendment by section 2122(b)(4) ofPub. L. 94–455applicable to taxable years beginning after Dec. 31, 1976, and before Jan. 1, 1983, see section 2122(c) ofPub. L. 94–455, as amended by Pub. L. 96–167, 9(c), Dec. 29, 1979, 93 Stat. 1278, set out as a note under section 190 of this title.

Amendment by section 2124(a)(3)(D) ofPub. L. 94–455applicable with respect to additions to capital accounts made after June 14, 1976 and before June 15, 1981, see section 2124(a)(4) ofPub. L. 94–455, set out as an Effective Date note under section 642 of this title.

Pub. L. 94–81, § 2(c),Aug. 9, 1975, 89 Stat. 418, provided that:

“(1) In general.—Except as provided in paragraph (2) the amendments made by this section [amending this section and section 1245 of this title] shall apply to dispositions after December 31, 1969, in taxable years ending after such date.

“(2) Election for past transactions.—In the case of any disposition occurring before the date of the enactment of this Act [Aug. 9, 1975], the amendments made by this section shall apply only if the organization acquiring the property elects (in the manner provided by regulations prescribed by the Secretary of the Treasury or his delegate) within 1 year after the date of the enactment of this Act to have such amendments apply with respect to such property.”

Amendment by Pub. L. 93–625applicable with respect to property placed in service after Dec. 31, 1973, see section 5(d) ofPub. L. 93–625, set out as a note under section 167 of this title.

Amendment by Pub. L. 92–178applicable to taxable years ending after Dec. 31, 1971, see section 303(d) ofPub. L. 92–178, set out as a note under section 642 of this title.

Amendment by section 521(b), (c), (e) ofPub. L. 91–172applicable with respect to taxable years ending after July 24, 1969, see section 521(g) ofPub. L. 91–172, set out as a note under section 167 of this title.

Amendment by section 704(b)(5) ofPub. L. 91–172applicable to taxable years ending after Dec. 31, 1968, see section 704(c) ofPub. L. 91–172, set out as an Effective Date note under section 169 of this title.

Pub. L. 91–172, title IX, § 910(d),Dec. 30, 1969, 83 Stat. 722, as amended by Pub. L. 99–514, § 2,Oct. 22, 1986, 100 Stat. 2095, provided that: “The amendments made by this section [enacting section 1039 of this title and amending this section] shall apply to approved dispositions of qualified housing projects (within the meaning of section 1039 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] as added by subsection (a)) after October 9, 1969.”

Pub. L. 88–272, title II, § 231(c),Feb. 26, 1964, 78 Stat. 105, provided that: “The amendments made by this section [enacting this section and amending sections 170, 301, 312, 341, 453, 751, and the analysis preceding section 1231 of this title] shall apply to dispositions after December 31, 1963, in taxable years ending after such date.”

For provisions that nothing in amendment by Pub. L. 101–508be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liability for tax for periods ending after Nov. 5, 1990, see section 11821(b) ofPub. L. 101–508, set out as a note under section 45K of this title.