### §1239. Gain from sale of depreciable property between certain related taxpayers

#### (a) Treatment of gain as ordinary income

In the case of a sale or exchange of property, directly or indirectly, between related persons, any gain recognized to the transferor shall be treated as ordinary income if such property is, in the hands of the transferee, of a character which is subject to the allowance for depreciation provided in section 167.

#### (b) Related persons

For purposes of subsection (a), the term "related persons" means—

(1) a person and all entities which are controlled entities with respect to such person,

(2) a taxpayer and any trust in which such taxpayer (or his spouse) is a beneficiary, unless such beneficiary's interest in the trust is a remote contingent interest (within the meaning of section 318(a)(3)(B)(i)), and

(3) except in the case of a sale or exchange in satisfaction of a pecuniary bequest, an executor of an estate and a beneficiary of such estate.

#### (c) Controlled entity defined

#### (1) General rule

For purposes of this section, the term "controlled entity" means, with respect to any person—

(A) a corporation more than 50 percent of the value of the outstanding stock of which is owned (directly or indirectly) by or for such person,

(B) a partnership more than 50 percent of the capital interest or profits interest in which is owned (directly or indirectly) by or for such person, and

(C) any entity which is a related person to such person under paragraph (3), (10), (11), or (12) of section 267(b).

#### (2) Constructive ownership

For purposes of this section, ownership shall be determined in accordance with rules similar to the rules under section 267(c) (other than paragraph (3) thereof).

#### (d) Employer and related employee association

For purposes of subsection (a), the term "related person" also includes—

(1) an employer and any person related to the employer (within the meaning of subsection (b)), and

(2) a welfare benefit fund (within the meaning of section 419(e)) which is controlled directly or indirectly by persons referred to in paragraph (1).

#### (e) Patent applications treated as depreciable property

For purposes of this section, a patent application shall be treated as property which, in the hands of the transferee, is of a character which is subject to the allowance for depreciation provided in section 167.

(Aug. 16, 1954, ch. 736, 68A Stat. 332; Pub. L. 85–866, title I, §56, Sept. 2, 1958, 72 Stat. 1645; Pub. L. 94–455, title XXI, §2129(a), Oct. 4, 1976, 90 Stat. 1922; Pub. L. 95–600, title VII, §701(v)(1), Nov. 6, 1978, 92 Stat. 2920; Pub. L. 96–471, §5, Oct. 19, 1980, 94 Stat. 2255; Pub. L. 97–448, title III, §301, Jan. 12, 1983, 96 Stat. 2397; Pub. L. 98–369, div. A, title I, §175(a), (b), title IV, §421(b)(6)(A), title V, §557(a), July 18, 1984, 98 Stat. 708, 794, 898; Pub. L. 99–514, title VI, §642(a)(1)(A)–(C), Oct. 22, 1986, 100 Stat. 2283, 2284; Pub. L. 105–34, title XIII, §1308(b), Aug. 5, 1997, 111 Stat. 1041.)

#### **Editorial Notes**

#### Amendments

1997—Subsec. (b)(3). Pub. L. 105–34 added par. (3).

1986—Subsec. (b)(1). Pub. L. 99–514, §642(a)(1)(A), substituted "controlled entities" for "80-percent owned entities".

Subsec. (c). Pub. L. 99–514, §642(a)(1)(B), (C), in heading, substituted "Controlled entity" for "80-percent owned entity", in par. (1), in introductory provisions, substituted "controlled entity" for "80-percent owned entity", in subpar. (A), substituted "more than 50 percent of the value" for "80 percent or more in value", in subpar. (B), substituted "more than 50 percent" for "80 percent or more", and added subpar. (C), and amended par. (2) generally. Prior to amendment, par. (2) read as follows: "For purposes of subparagraphs (A) and (B) of paragraph (1), the principles of section 318 shall apply, except that—

"(A) the members of an individual's family shall consist only of such individual and such individual's spouse,

"(B) paragraph (2)(C) of section 318(a) shall be applied without regard to the 50-percent limitation contained therein, and

"(C) paragraph (3) of section 318(a) shall not apply."

1984—Subsec. (b). Pub. L. 98–369, §421(b)(6), redesignated pars. (2) and (3) as (1) and (2), respectively. Former par. (1), defining a husband and wife as "related persons", was struck out.

Pub. L. 98–369, §175(b), amended subsec. (b) generally, adding par. (3).

Subsec. (d). Pub. L. 98–369, §557(a), added subsec. (d).

Subsec. (e). Pub. L. 98–369, §175(a), added subsec. (e).

1983—Subsec. (b). Pub. L. 97–448, §301(a), substituted provisions that "related persons" means (1) a husband and wife, and (2) a person and all entities which are 80-percent owned entities with respect to such person, for provisions which provided that "related persons" meant (1) the taxpayer and the taxpayer's spouse, (2) the taxpayer and an 80-percent owned entity, or (3) two 80-percent owned entities.

Subsec. (c)(1). Pub. L. 97–448, §301(b), inserted ", with respect to any person" after "means" in introductory provisions and substituted "such person" for "the taxpayer" in subpars. (A) and (B).

Subsec. (c)(2). Pub. L. 97–448, §301(b), struck out "and" at end of subpar. (A), substituted "paragraph (2)(C)" for "paragraphs (2)(C) and (3)(C)" in subpar. (B), and added subpar. (C).

1980—Subsec. (b)(1). Pub. L. 96–471 substituted "the taxpayer and the taxpayer's spouse" for "a husband and wife".

Subsec. (b)(2). Pub. L. 96–471 substituted "the taxpayer and an 80-percent owned entity, or" for "an individual and a corporation 80 percent or more in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual, or".

Subsec. (b)(3). Pub. L. 96–471 substituted "two 80-percent owned entities" for "two or more corporations 80 percent or more in value of the outstanding stock of each of which is owned, directly or indirectly, by or for the same individual".

Subsec. (c). Pub. L. 96–471 substituted provisions defining an "80-percent owned entity" for provisions relating to constructive ownership of stock.

1978—Subsec. (a). Pub. L. 95–600 substituted "of a character which is subject to the allowance for depreciation provided in section 167" for "subject to the allowance for depreciation provided in section 167".

1976—Pub. L. 94–455 substituted "sale of depreciable property between certain related taxpayers" for "sale of certain property between spouses or between an individual and a controlled corporation" in section catchline.

Subsec. (a). Pub. L. 94–455 substituted provisions for transactions between related persons for such transactions (1) between a husband and wife; or (2) between an individual and a corporation more than 80 percent in value of the outstanding stock of which is owned by such individual, his spouse, and his minor children and minor grandchildren and "any gain recognized to the transferee shall be treated as ordinary income if such property is, in the hands of the transferee, subject to the allowance for depreciation provided in section 167" for "any gain recognized to the transferor from the sale or exchange of such property shall be considered as gain from the sale or exchange of property which is neither a capital asset nor property described in section 1231".

Subsec. (b). Pub. L. 94–455 substituted definition of "related persons" for prior provision making section applicable only to sales or exchanges of depreciable property.

Subsec. (c). Pub. L. 94–455 substituted provision respecting constructive ownership of stock for prior provision making section inapplicable with respect to sales or exchanges made on or before May 3, 1951.

1958—Subsec. (c). Pub. L. 85–866 added subsec. (c).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1997 Amendment

Amendment by Pub. L. 105–34 applicable to taxable years beginning after Aug. 5, 1997, see section 1308(c) of Pub. L. 105–34, set out as a note under section 267 of this title.

#### Effective Date of 1986 Amendment

Pub. L. 99–514, title VI, §642(c), Oct. 22, 1986, 100 Stat. 2284, as amended by Pub. L. 100–647, title I, §1006(i)(3), Nov. 10, 1988, 102 Stat. 3411, provided that:

"(1) In general.—Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 453 and 707 of this title] shall apply to sales after the date of the enactment of this Act [Oct. 22, 1986], in taxable years ending after such date.

"(2) Transitional rule for binding contracts.—The amendments made by this section shall not apply to sales made after August 14, 1986, which are made pursuant to a binding contract in effect on August 14, 1986, and at all times thereafter."

#### Effective Date of 1984 Amendment

Pub. L. 98–369, div. A, title I, §175(c), July 18, 1984, 98 Stat. 708, provided that: "The amendments made by this section [amending this section] shall apply to sales or exchanges after March 1, 1984, in taxable years ending after such date."

Amendment by section 421(b)(6) of Pub. L. 98–369 applicable to transfers after July 18, 1984, in taxable years ending after such date, subject to election to have amendment apply to transfers after 1983 or to transfers pursuant to existing decrees, see section 421(d) of Pub. L. 98–369, set out as an Effective Date note under section 1041 of this title.

Pub. L. 98–369, div. A, title V, §557(b), July 18, 1984, 98 Stat. 899, provided that: "The amendment made by subsection (a) [amending this section] shall apply to sales or exchanges after the date of the enactment of this Act [July 18, 1984] in taxable years ending after such date."

#### Effective Date of 1983 Amendment

Amendment by Pub. L. 97–448 applicable to dispositions made after Oct. 19, 1980, in taxable years ending after such date, see section 311(a) of Pub. L. 97–448, set out as a note under section 453 of this title.

#### Effective Date of 1978 Amendment

Pub. L. 95–600, title VII, §701(v)(2), Nov. 6, 1978, 92 Stat. 2920, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that: "The amendment made by paragraph (1) [amending this section] shall apply as if included in the amendment made to section 1239 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] by section 2129(a) of the Tax Reform Act of 1976 [section 2129(a) of Pub. L. 94–455]."

#### Effective Date of 1976 Amendment

Pub. L. 94–455, title XXI, §2129(b), Oct. 4, 1976, 90 Stat. 1922, provided that: "The amendment made by this section [amending this section] shall apply to sales or exchanges after the date of the enactment of this Act [Oct. 4, 1976]. For purposes of the preceding sentence, a sale or exchange is considered to have occurred on or before such date of enactment if such sale or exchange is made pursuant to a binding contract entered into on or before that date."