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listode
New Member

Can you transfer a capital loss carry forward from a Form 1040 to a form 1041 if the assets used to fund the trust are from the person with the 1040?

 
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4 Replies
GeoffreyG
New Member

Can you transfer a capital loss carry forward from a Form 1040 to a form 1041 if the assets used to fund the trust are from the person with the 1040?

The answer to your question is, unfortunately, no.  A capital loss carryforward remains "attached" the individual to whom it belongs, and cannot be gifted, sold, or transferred away to another person or entity (including trusts).

One pseudo-exception to this general rule is the case of a Grantor-type trust (as defined in IRC §§ 671 - 678), in which the trust instrument is effectively ignored for income tax purposes, and the annual income from the trust assets are instead reported on the income tax return of the Grantor.  In that instance the capital loss carryforward benefit of the trust's owner can be effectively put to use by the trust by offsetting otherwise taxable income.

That said, the reverse of this overall situation is very much true (and possible).  A trust (Form 1041) that has an unused capital loss carryforward, or an unused Net Operating Loss carryforward (NOL), can, in its final year of existence and upon termination, pass that tax benefit along to the trust's beneficiaries.  This would be done, and shown, on the trust's final Form 1041 Schedule K-1, as received by the beneficiary.

There is no reverse mechanism, tax form, or law, however, that will allow an individual (Form 1040 filer) to pass along their capital loss carryforward into a trust, even where that trust is 100% funded by assets contributed by that same person.

This is a very good question, and we thank you for asking it.

Can you transfer a capital loss carry forward from a Form 1040 to a form 1041 if the assets used to fund the trust are from the person with the 1040?

I have a net personal operating U.S. Federal income tax loss carryover (carryforward) for my tax year 2017 in excess of $10 billion. This loss arises from oil and gas investments. This loss carryover (carryforward) has been investigated by Revenue Officers of the Internal Revenue Services and they have approved the same. They have stated that soon they will provide me documentation for this U.S. Federal Income Tax loss carryover (carryforward).
Is it possible for me to sell, transfer or otherwise provide benefit to a third party? Leave message should you telephone me.

George

DaveF1006
Expert Alumni

Can you transfer a capital loss carry forward from a Form 1040 to a form 1041 if the assets used to fund the trust are from the person with the 1040?

This is a legal issue more than a tax question. you may wish to consult with an attorney to explore the legal implications of selling or transferring to a third party.

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cindyshay
New Member

Can you transfer a capital loss carry forward from a Form 1040 to a form 1041 if the assets used to fund the trust are from the person with the 1040?

Can you please provide regulation or other authority for your "pseudo exception" for grantor trusts?  That is the exact situation I have.  Client with a grantor trust had capital losses which were reflected on her 1040 and resulted in carryover.  Client passed away shortly after and the trust is now a complex trust and this year has significant capital gains and we are trying to find authority that the unused carried over losses from the 1040 related to the trust's capital losses can now be used on the 1041.  

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