usc:us:26:1038

text: U.S.C. Title 26 - INTERNAL REVENUE CODE 26 U.S.C. United States Code, 2024 Edition Title 26 - INTERNAL REVENUE CODE Subtitle A - Income Taxes CHAPTER 1 - NORMAL TAXES AND SURTAXES Subchapter O - Gain or Loss on Disposition of Property PART III - COMMON NONTAXABLE EXCHANGES Sec. 1038 - Certain reacquisitions of real property From the U.S. Government Publishing Office, www.gpo.gov §1038. Certain reacquisitions of real property (a) General rule If— (1) a sale of real property gives rise to indebtedness to the seller which is secured by the real property sold, and (2) the seller of such property reacquires such property in partial or full satisfaction of such indebtedness, then, except as provided in subsections (b) and (d), no gain or loss shall result to the seller from such reacquisition, and no debt shall become worthless or partially worthless as a result of such reacquisition. (b) Amount of gain resulting (1) In general In the case of a reacquisition of real property to which subsection (a) applies, gain shall result from such reacquisition to the extent that— (A) the amount of money and the fair market value of other property (other than obligations of the purchaser) received, prior to such reacquisition, with respect to the sale of such property, exceeds (B) the amount of the gain on the sale of such property returned as income for periods prior to such reacquisition. (2) Limitation The amount of gain determined under paragraph (1) resulting from a reacquisition during any taxable year beginning after the date of the enactment of this section shall not exceed the amount by which the price at which the real property was sold exceeded its adjusted basis, reduced by the sum of— (A) the amount of the gain on the sale of such property returned as income for periods prior to the reacquisition of such property, and (B) the amount of money and the fair market value of other property (other than obligations of the purchaser received with respect to the sale of such property) paid or transferred by the seller in connection with the reacquisition of such property. For purposes of this paragraph, the price at which real property is sold is the gross sales price reduced by the selling commissions, legal fees, and other expenses incident to the sale of such property which are properly taken into account in determining gain or loss on such sale. (3) Gain recognized Except as provided in this section, the gain determined under this subsection resulting from a reacquisition to which subsection (a) applies shall be recognized, notwithstanding any other provision of this subtitle. (c) Basis of reacquired real property If subsection (a) applies to the reacquisition of any real property, the basis of such property upon such reacquisition shall be the adjusted basis of the indebtedness to the seller secured by such property (determined as of the date of reacquisition), increased by the sum of— (1) the amount of the gain determined under subsection (b) resulting from such reacquisition, and (2) the amount described in subsection (b)(2)(B). If any indebtedness to the seller secured by such property is not discharged upon the reacquisition of such property, the basis of such indebtedness shall be zero. (d) Indebtedness treated as worthless prior to reacquisition If, prior to a reacquisition of real property to which subsection (a) applies, the seller has treated indebtedness secured by such property as having become worthless or partially worthless— (1) such seller shall be considered as receiving, upon the reacquisition of such property, an amount equal to the amount of such indebtedness treated by him as having become worthless, and (2) the adjusted basis of such indebtedness shall be increased (as of the date of reacquisition) by an amount equal to the amount so considered as received by such seller. (e) Principal residences If— (1) subsection (a) applies to a reacquisition of real property with respect to the sale of which gain was not recognized under section 121 (relating to gain on sale of principal residence); and (2) within 1 year after the date of the reacquisition of such property by the seller, such property is resold by him, then, under regulations prescribed by the Secretary, subsections (b), (c), and (d) of this section shall not apply to the reacquisition of such property and, for purposes of applying section 121, the resale of such property shall be treated as a part of the transaction constituting the original sale of such property. [(f) Repealed. Pub. L. 104–188, title I, §1616(b)(12), Aug. 20, 1996, 110 Stat. 1857] (g) Acquisition by estate, etc., of seller Under regulations prescribed by the Secretary, if an installment obligation is indebtedness to the seller which is described in subsection (a), and if such obligation is, in the hands of the taxpayer, an obligation with respect to which section 691(a)(4)(B) applies, then— (1) for purposes of subsection (a), acquisition of real property by the taxpayer shall be treated as reacquisition by the seller, and (2) the basis of the real property acquired by the taxpayer shall be increased by an amount equal to the deduction under section 691(c) which would (but for this subsection) have been allowable to the taxpayer with respect to the gain on the exchange of the obligation for the real property. (Added Pub. L. 88–570, §2(a), Sept. 2, 1964, 78 Stat. 854; amended Pub. L. 94–455, title XIX, §1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 95–600, title IV, §§404(c)(6), 405(c)(3), Nov. 6, 1978, 92 Stat. 2870, 2871; Pub. L. 96–471, §4, Oct. 19, 1980, 94 Stat. 2255; Pub. L. 104–188, title I, §1616(b)(12), Aug. 20, 1996, 110 Stat. 1857; Pub. L. 105–34, title III, §312(d)(8), Aug. 5, 1997, 111 Stat. 840.) Editorial Notes Amendments 1997 —Subsec. (e). Pub. L. 105–34 amended heading and text of subsec. (e) generally. Prior to amendment, text read as follows: "If— "(1) subsection (a) applies to a reacquisition of real property with respect to the sale of which— "(A) an election under section 121 (relating to one-time exclusion of gain from sale of principal residence by individual who has attained age 55) is in effect, or "(B) gain was not recognized under section 1034 (relating to rollover of gain on sale of principal residence); and "(2) within one year after the date of the reacquisition of such property by the seller, such property is resold by him, then, under regulations prescribed by the Secretary, subsections (b), (c), and (d) of this section shall not apply to the reacquisition of such property and, for purposes of applying sections 121 and 1034, the resale of such property shall be treated as a part of the transaction constituting the original sale of such property." 1996 —Subsec. (f). Pub. L. 104–188 struck out subsec. (f) which read as follows: "(f) Reacquisitions by Domestic Building and Loan Associations .—This section shall not apply to a reacquisition of real property by an organization described in section 593(a) (relating to domestic building and loan associations, etc.)." 1980 —Subsec. (g). Pub. L. 96–471 added subsec. (g). 1978 —Subsec. (e)(1)(A). Pub. L. 95–600, §404(c)(6), substituted "relating to one-time exclusion of gain from sale of principal residence by individual who has attained age 55" for "relating to gain from sale or exchange of residence of an individual who has attained age 65". Subsec. (e)(1)(B). Pub. L. 95–600, §405(c)(3), which directed the amendment of section 1083(e)(1)(B) of this title by substituting "(relating to rollover of gain on sale of principal residence)" for "(relating to sale or exchange of residence)", was executed to this section to reflect the probable intent of Congress because section 1083 does not contain a subsec. (e)(1)(B). 1976 —Subsec. (e). Pub. L. 94–455 struck out "or his delegate" after "Secretary". Statutory Notes and Related Subsidiaries Effective Date of 1997 Amendment Amendment by Pub. L. 105–34 applicable to sales and exchanges after May 6, 1997, with certain exceptions, see section 312(d) of Pub. L. 105–34, set out as a note under section 121 of this title. Effective Date of 1996 Amendment Amendment by Pub. L. 104–188 applicable to taxable years beginning after Dec. 31, 1995, see section 1616(c) of Pub. L. 104–188, set out as a note under section 593 of this title. Effective Date of 1980 Amendment Pub. L. 96–471, §6(c), Oct. 19, 1980, 94 Stat. 2256, provided: "The amendment made by section 4 [amending this section] shall apply to acquisitions of real property by the taxpayer after the date of the enactment of this Act [Oct. 19, 1980]." Effective Date of 1978 Amendment Amendment by section 404(c)(6) of Pub. L. 95–600 applicable to sales or exchanges after July 26, 1978, in taxable years ending after such date, see section 404(d)(1) of Pub. L. 95–600, set out as a note under section 121 of this title. Pub. L. 95–600, title IV, §405(d), Nov. 6, 1978, 92 Stat. 2871, provided that: "The amendments made by this section [amending this section and sections 1034, 1250, 6212, and 6504 of this title] shall apply to sales and exchanges of residences after July 26, 1978, in taxable years ending after such date." Effective Date; Election To Apply to Taxable Years Beginning After Dec. 31, 1957 Pub. L. 88–570, §2(c), Sept. 2, 1964, 78 Stat. 856, provided that: "(1) The amendments made by this section [enacting this section] shall apply to taxable years beginning after the date of the enactment of this Act [Sept. 2, 1964]. "(2) If the taxpayer makes an election under this paragraph, the amendments made by this section [enacting this section] shall also apply to taxable years beginning after December 31, 1957, except that such amendments shall not apply with respect to any reacquisition of real property in a taxable year for which the assessment of a deficiency, or the credit or refund of an overpayment, is prevented on the date of the enactment of this Act [Sept. 2, 1964] by the operation of any law or rule of law. An election under this paragraph shall be made within one year after the date of the enactment of this Act and shall be made in such form and manner as the Secretary of the Treasury or his delegate shall prescribe by regulations. "(3) If an election is made by the taxpayer under paragraph (2), and if the assessment of a deficiency, or the credit or refund of an overpayment, for any taxable year to which such election applies is not prevented on the date of the enactment of this Act [Sept. 2, 1964] by the operation of any law or rule of law— "(A) the period within which a deficiency for such taxable year may be assessed (to the extent such deficiency is attributable to the application of the amendments made by this section) shall not expire prior to one year after the date of such election; and "(B) the period within which a claim for credit or refund of an overpayment for such taxable year may be filed (to the extent such overpayment is attributable to the application of such amendments) shall not expire prior to one year after the date of such election. No interest shall be payable with respect to any deficiency attributable to the application of such amendments, and no interest shall be allowed with respect to any credit or refund of any overpayment attributable to the application of such amendments, for any period prior to the date of the enactment of this Act. An election by a taxpayer under paragraph (2) shall be deemed a consent to the application of this paragraph."