NET OPERATING LOSSES (“NOLs”) - CARRYBACKS AND CARRYOVERS
[ACTION MAY BE NEEDED BY OCTOBER 31, 2002]
HAROLD S. SMALL, J.D., CPA, and AEP
When economic times are difficult, sometimes a source of funds may be tax refunds because of the application of Net Operating Losses (“NOL’s”). This issue is more important today not just because of our current economy, but because there is a deadline for action of October 31, 2002 that may apply to your circumstance.
As the CCH 2002 Master Tax Guide States, most taxpayers are “... allowed to carry back an NOL from a trade or business to apply as a deduction against prior income and to deduct [it] from [a] succeeding years’ income...” Under Internal Revenue Code (“Code”) Section 172(b), subject to certain statutory exceptions, the taxpayers eligible to use the NOL include corporations, individuals, estates and trusts, and partners. Generally NOL’s are not available to S corporations and partnerships, but the principals are entitled to the benefit of their distributive share of an NOL. Over-simplified, the NOL for the purposes of the Code provisions consists of the excess of allowable deductions over gross income. Some statutory adjustments are needed to complete the calculation. A detailed discussion is beyond the scope of this article, which is intended to point out a recent change and a looming deadline.
The 2002 Tax Act has provisions that are important to consideration of the NOL and its application for the current and succeeding years. The new provisions are important because they include the extension of the carryback period from two to five years for NOLs arising in tax years 2001 and 2002. However, a taxpayer has the ability to waive the five-year carryback period, by the tax return due date for the loss year (including timely filed extensions). If an election is made the existing rules relating to NOLs will apply.
The Internal Revenue Service (“IRS”) issued Rev. Proc. 2002-40, IRB 2002-23 on June 10, 2002 to address certain issues raised relating to the application of the NOL and its effective period. It states that it “...is effective for NOLs arising in taxable years ending after December 31, 2000. This Rev. Proc. Indicates that taxpayers that previously elected to waive the NOL carryback period for years ending in 2001 or 2002 may revoke the election and apply the new five-year carryback period by following the procedures indicated in this Rev. Proc. by October 31, 2002. Please note the immediacy of the action needed. The revocation is also supposed to apply for AMT purposes. No actions or filings appear to be needed if a taxpayer does not want to revoke the previously filed election.
The following is a summary of the procedures to follow for the revocation of the previously elected carryback period.
! For taxpayers that want to use the five-year carryback period and that previously made the election to waive the carryback period or those that applied the two-year carryback period, they must timely file the appropriate form using the five-year carryback period.
! For taxpayers that did not elect to waive the carryback period and those that did not apply the two-year carryback period, but that want to relinquish the five-year carryback period, they must file the appropriate form using a two-year carryback period. This must be done even if no refund or change in tax liability is shown on the form.
! Taxpayers that previously elected a waiver of the carryback period and now want to use the five-year period should type or print at the top of the appropriate form: “Revocation of NOL carryback waiver pursuant to Rev. Proc. 2002-40.”
! A similar action should be taken by taxpayers that previously applied the two-year carryback and now want the five-year carryback by typing or printing at the top of the appropriate form: “Amended refund claim pursuant to Rev. Proc. 20020-40.”
The last two actions may not be needed, depending upon changes that may be implemented by the IRS and their use of the newly revised forms. Your tax preparer should be able to assist you. Also, special rules apply to consolidated groups (See T.D. 8997 and Reg. 122564-02 published May 31, 2002).
The appropriate forms include IRS Form 1139, 1120X, 1045, 1040X, 1045 and 1041, depending upon the taxpayer and the required forms. Certain of these tax forms were modified within the past two months to address these changes. It is important that the correct (current) tax form is used and that it contains the appropriate statements and elections as allowed.
You should consult with your tax preparer regarding the issues raised above and consider the implications of these changes and what actions, if any, you want to take. However, be mindful of the October 31, 2002 deadline.
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IMPLEMENTATION OF ANY OF THE IDEAS INDICATED HEREIN. SHOULD YOU HAVE QUESTIONS REGARDING THIS
MATTER, HAROLD S. SMALL, ESQ., CAN BE REACHED AT
Copyright Harold S. Small 2007. All rights reserved.