A taxpayer can generally avoid paying income tax on gain from the sale of property if the sale is an involuntary conversion. This typically involves a government act that takes or destroys the taxpayer’s property. There are a number of different types of property and takings that can qualify? But what about a local TV station that sells its broadcast frequencies? The IRS addresses this in PLR 201924017.
Facts & Procedural History
The taxpayer was a local TV station. It owned UHF spectrum rights for a particular local market.
Congress enacted the Middle Class Tax Relief and Job Creation Act of
2012. This Act allowed the FCC to essentially re-allocate spectrum rights to accommodate more bandwidth for wireless carriers.
The FCC implemented the Act by requiring spectrum owners to agree to participate in an auction, cease operations, or be moved to a narrower spectrum in a lower band.
Because the taxpayer had specific spectrum, it was likely that it would be moved to a narrower spectrum in a lower band. In light of this, the taxpayer opted to sell its rights to a third party.
The question was whether this voluntary sale to a third party was an involuntary conversion.
Section 1033 provides a mechanism to avoid paying income tax if property is involuntarily converted.
The converted language refers to the reinvestment of gain from the taking into newly acquired property. To qualify, the property acquired has to be similar to the relinquished property and it has to be purchased within two years from the sale or transfer.
Involuntary conversion includes the destruction (in whole or in part), theft, seizure, or requisition or condemnation of property. This often involves state and local governments taking land to use for utility easements or public roads or right of ways.
Does a Voluntary Sale Qualify?
But what about a voluntary sale, as in the present case? The taxpayer in the present case sold its spectrum rights before any taking took place.
The IRS’s PLR references Rev. Rul. 63-221, 1963-2 C.B. 332 for the proposition that:
threat or imminence of condemnation is generally considered to exist where a property owner is informed, either orally or in writing, by a representative of a governmental body that the government entity has decided to acquire his property and the property owner has reasonable grounds to believe, from the information conveyed to him by such
representative, that the necessary steps to condemn the property will be instituted if a voluntary sale is not arranged.
This confirms that a voluntary sale in advance of a taking can qualify as “involuntary.”
Is a Potential Reallocation of Property a Taking?
But is the forced participation in an auction or even an lottery system to reallocate property even a taking?
The IRS’s PLR notes that:
The FCC’s threat of Repacking Taxpayer 2’s Station to different frequencies and the consequent loss of economic utility of its related property constitute an involuntary conversion.
It does not go further than making this assertion, even though the taxpayer may not have had its frequencies moved or ended up with something less than it currently had through this process.
Compare this to the more common situation where property is taken. If the taxpayer was offered different property but opted to sell its property to a third party before the trade, would that qualify? It would seem so given this PLR.
Those who are facing an actual or threatened taking should take heed of this PLR. Some tax planning and tax advice may be necessary. It provides additional guidance (albeit non-binding guidance), as to what types of property and takings can qualify.
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