26 U.S.C. § 197 — Amortization of goodwill and certain other

Page 924 TITLE 26—INTERNAL REVENUE CODE § 197 § 197. Amortization of goodwill and certain other intangibles (a) General rule A taxpayer shall be entitled to an amortiza- tion deduction with respect to any amortizable section 197 intangible. The amount of such de- duction shall be determined by amortizing the adjusted basis (for purposes of determining gain) of such intangible ratably over the 15-year pe- riod beginning with the month in which such in- tangible was acquired. (b) No other depreciation or amortization deduc- tion allowable Except as provided in subsection (a), no depre- ciation or amortization deduction shall be al- lowable with respect to any amortizable section 197 intangible. (c) Amortizable section 197 intangible For purposes of this section— (1) In general Except as otherwise provided in this section, the term ‘‘amortizable section 197 intangible’’ means any section 197 intangible— (A) which is acquired by the taxpayer after the date of the enactment of this section, and (B) which is held in connection with the conduct of a trade or business or an activity described in section 212. (2) Exclusion of self-created intangibles, etc. The term ‘‘amortizable section 197 intan- gible’’ shall not include any section 197 intan- gible— (A) which is not described in subparagraph (D), (E), or (F) of subsection (d)(1), and (B) which is created by the taxpayer. This paragraph shall not apply if the intan- gible is created in connection with a trans- action (or series of related transactions) in- volving the acquisition of assets constituting a trade or business or substantial portion thereof. (3) Anti-churning rules For exclusion of intangibles acquired in certain transactions, see subsection (f)(9). (d) Section 197 intangible For purposes of this section— (1) In general Except as otherwise provided in this section, the term ‘‘section 197 intangible’’ means— (A) goodwill, (B) going concern value, (C) any of the following intangible items: (i) workforce in place including its com- position and terms and conditions (con- tractual or otherwise) of its employment, (ii) business books and records, oper- ating systems, or any other information base (including lists or other information with respect to current or prospective cus- tomers), (iii) any patent, copyright, formula, process, design, pattern, knowhow, format, or other similar item, (iv) any customer-based intangible, (v) any supplier-based intangible, and (vi) any other similar item, (D) any license, permit, or other right granted by a governmental unit or an agen- cy or instrumentality thereof, (E) any covenant not to compete (or other arrangement to the extent such arrange- ment has substantially the same effect as a covenant not to compete) entered into in connection with an acquisition (directly or indirectly) of an interest in a trade or busi- ness or substantial portion thereof, and (F) any franchise, trademark, or trade name. (2) Customer-based intangible (A) In general The term ‘‘customer-based intangible’’ means— (i) composition of market, (ii) market share, and (iii) any other value resulting from fu- ture provision of goods or services pursu- ant to relationships (contractual or other- wise) in the ordinary course of business with customers. (B) Special rule for financial institutions In the case of a financial institution, the term ‘‘customer-based intangible’’ includes deposit base and similar items. (3) Supplier-based intangible The term ‘‘supplier-based intangible’’ means any value resulting from future acquisitions of goods or services pursuant to relationships (contractual or otherwise) in the ordinary course of business with suppliers of goods or services to be used or sold by the taxpayer. (e) Exceptions For purposes of this section, the term ‘‘section 197 intangible’’ shall not include any of the fol- lowing: (1) Financial interests Any interest— (A) in a corporation, partnership, trust, or estate, or (B) under an existing futures contract, for- eign currency contract, notional principal contract, or other similar financial contract. (2) Land Any interest in land. (3) Computer software (A) In general Any— (i) computer software which is readily available for purchase by the general pub- lic, is subject to a nonexclusive license, and has not been substantially modified, and (ii) other computer software which is not acquired in a transaction (or series of re- lated transactions) involving the acquisi- tion of assets constituting a trade or busi- ness or substantial portion thereof. (B) Computer software defined For purposes of subparagraph (A), the term ‘‘computer software’’ means any program Page 925 TITLE 26—INTERNAL REVENUE CODE § 197 designed to cause a computer to perform a desired function. Such term shall not in- clude any data base or similar item unless the data base or item is in the public domain and is incidental to the operation of other- wise qualifying computer software. (4) Certain interests or rights acquired sepa- rately Any of the following not acquired in a trans- action (or series of related transactions) in- volving the acquisition of assets constituting a trade business or substantial portion there- of: (A) Any interest in a film, sound record- ing, video tape, book, or similar property. (B) Any right to receive tangible property or services under a contract or granted by a governmental unit or agency or instrumen- tality thereof. (C) Any interest in a patent or copyright. (D) To the extent provided in regulations, any right under a contract (or granted by a governmental unit or an agency or instru- mentality thereof) if such right— (i) has a fixed duration of less than 15 years, or (ii) is fixed as to amount and, without re- gard to this section, would be recoverable under a method similar to the unit-of-pro- duction method. (5) Interests under leases and debt instruments Any interest under— (A) an existing lease of tangible property, or (B) except as provided in subsection (d)(2)(B), any existing indebtedness. (6) Mortgage servicing Any right to service indebtedness which is secured by residential real property unless such right is acquired in a transaction (or se- ries of related transactions) involving the ac- quisition of assets (other than rights described in this paragraph) constituting a trade or busi- ness or substantial portion thereof. (7) Certain transaction costs Any fees for professional services, and any transaction costs, incurred by parties to a transaction with respect to which any portion of the gain or loss is not recognized under part III of subchapter C. (f) Special rules (1) Treatment of certain dispositions, etc. (A) In general If there is a disposition of any amortizable section 197 intangible acquired in a trans- action or series of related transactions (or any such intangible becomes worthless) and one or more other amortizable section 197 intangibles acquired in such transaction or series of related transactions are retained— (i) no loss shall be recognized by reason of such disposition (or such worthlessness), and (ii) appropriate adjustments to the ad- justed bases of such retained intangibles shall be made for any loss not recognized under clause (i). (B) Special rule for covenants not to compete In the case of any section 197 intangible which is a covenant not to compete (or other arrangement) described in subsection (d)(1)(E), in no event shall such covenant or other arrangement be treated as disposed of (or becoming worthless) before the disposi- tion of the entire interest described in such subsection in connection with which such covenant (or other arrangement) was en- tered into. (C) Special rule All persons treated as a single taxpayer under section 41(f)(1) shall be so treated for purposes of this paragraph. (2) Treatment of certain transfers (A) In general In the case of any section 197 intangible transferred in a transaction described in subparagraph (B), the transferee shall be treated as the transferor for purposes of ap- plying this section with respect to so much of the adjusted basis in the hands of the transferee as does not exceed the adjusted basis in the hands of the transferor. (B) Transactions covered The transactions described in this subpara- graph are— (i) any transaction described in section 332, 351, 361, 721, 731, 1031, or 1033, and (ii) any transaction between members of the same affiliated group during any tax- able year for which a consolidated return is made by such group. (3) Treatment of amounts paid pursuant to covenants not to compete, etc. Any amount paid or incurred pursuant to a covenant or arrangement referred to in sub- section (d)(1)(E) shall be treated as an amount chargeable to capital account. (4) Treatment of franchises, etc. (A) Franchise The term ‘‘franchise’’ has the meaning given to such term by section 1253(b)(1). (B) Treatment of renewals Any renewal of a franchise, trademark, or trade name (or of a license, a permit, or other right referred to in subsection (d)(1)(D)) shall be treated as an acquisition. The preceding sentence shall only apply with respect to costs incurred in connection with such renewal. (C) Certain amounts not taken into account Any amount to which section 1253(d)(1) ap- plies shall not be taken into account under this section. (5) Treatment of certain reinsurance trans- actions In the case of any amortizable section 197 in- tangible resulting from an assumption rein- surance transaction, the amount taken into account as the adjusted basis of such intan- gible under this section shall be the excess of— (A) the amount paid or incurred by the acquirer under the assumption reinsurance transaction, over Page 926 TITLE 26—INTERNAL REVENUE CODE § 197 (B) the amount required to be capitalized under section 848 in connection with such transaction. Subsection (b) shall not apply to any amount required to be capitalized under section 848. (6) Treatment of certain subleases For purposes of this section, a sublease shall be treated in the same manner as a lease of the underlying property involved. (7) Treatment as depreciable For purposes of this chapter, any amortiz- able section 197 intangible shall be treated as property which is of a character subject to the allowance for depreciation provided in section 167. (8) Treatment of certain increments in value This section shall not apply to any incre- ment in value if, without regard to this sec- tion, such increment is properly taken into ac- count in determining the cost of property which is not a section 197 intangible. (9) Anti-churning rules For purposes of this section— (A) In general The term ‘‘amortizable section 197 intan- gible’’ shall not include any section 197 in- tangible which is described in subparagraph (A) or (B) of subsection (d)(1) (or for which depreciation or amortization would not have been allowable but for this section) and which is acquired by the taxpayer after the date of the enactment of this section, if— (i) the intangible was held or used at any time on or after July 25, 1991, and on or be- fore such date of enactment by the tax- payer or a related person, (ii) the intangible was acquired from a person who held such intangible at any time on or after July 25, 1991, and on or be- fore such date of enactment, and, as part of the transaction, the user of such intan- gible does not change, or (iii) the taxpayer grants the right to use such intangible to a person (or a person re- lated to such person) who held or used such intangible at any time on or after July 25, 1991, and on or before such date of enactment. For purposes of this subparagraph, the deter- mination of whether the user of property changes as part of a transaction shall be de- termined in accordance with regulations prescribed by the Secretary. For purposes of this subparagraph, deductions allowable under section 1253(d) shall be treated as de- ductions allowable for amortization. (B) Exception where gain recognized If— (i) subparagraph (A) would not apply to an intangible acquired by the taxpayer but for the last sentence of subparagraph (C)(i), and (ii) the person from whom the taxpayer acquired the intangible elects, notwith- standing any other provision of this title— (I) to recognize gain on the disposition of the intangible, and (II) to pay a tax on such gain which, when added to any other income tax on such gain under this title, equals such gain multiplied by the highest rate of in- come tax applicable to such person under this title, then subparagraph (A) shall apply to the intangible only to the extent that the tax- payer’s adjusted basis in the intangible ex- ceeds the gain recognized under clause (ii)(I). (C) Related person defined For purposes of this paragraph— (i) Related person A person (hereinafter in this paragraph referred to as the ‘‘related person’’) is re- lated to any person if— (I) the related person bears a relation- ship to such person specified in section 267(b) or section 707(b)(1), or (II) the related person and such person are engaged in trades or businesses under common control (within the meaning of subparagraphs (A) and (B) of section 41(f)(1)). For purposes of subclause (I), in applying section 267(b) or 707(b)(1), ‘‘20 percent’’ shall be substituted for ‘‘50 percent’’. (ii) Time for making determination A person shall be treated as related to another person if such relationship exists immediately before or immediately after the acquisition of the intangible involved. (D) Acquisitions by reason of death Subparagraph (A) shall not apply to the acquisition of any property by the taxpayer if the basis of the property in the hands of the taxpayer is determined under section 1014(a). (E) Special rule for partnerships With respect to any increase in the basis of partnership property under section 732, 734, or 743, determinations under this paragraph shall be made at the partner level and each partner shall be treated as having owned and used such partner’s proportionate share of the partnership assets. (F) Anti-abuse rules The term ‘‘amortizable section 197 intan- gible’’ does not include any section 197 in- tangible acquired in a transaction, one of the principal purposes of which is to avoid the requirement of subsection (c)(1) that the intangible be acquired after the date of the enactment of this section or to avoid the provisions of subparagraph (A). (10) Tax-exempt use property subject to lease In the case of any section 197 intangible which would be tax-exempt use property as de- fined in subsection (h) of section 168 if such section applied to such intangible, the amorti- zation period under this section shall not be less than 125 percent of the lease term (within the meaning of section 168(i)(3)). (g) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes Page 927 TITLE 26—INTERNAL REVENUE CODE § 198 of this section, including such regulations as may be appropriate to prevent avoidance of the purposes of this section through related persons or otherwise. (Added Pub. L. 103–66, title XIII, § 13261(a), Aug. 10, 1993, 107 Stat. 532; amended Pub. L. 108–357, title VIII, §§ 847(b)(3), 886(a), Oct. 22, 2004, 118 Stat. 1602, 1641.) Editorial Notes REFERENCES IN TEXT The date of the enactment of this section, referred to in subsecs. (c)(1)(A) and (f)(9)(A), (F), is the date of en- actment of Pub. L. 103–66, which was approved Aug. 10, 1993. AMENDMENTS 2004—Subsec. (e)(6) to (8). Pub. L. 108–357, § 886(a), re- designated pars. (7) and (8) as (6) and (7), respectively, and struck out heading and text of former par. (6). Text read as follows: ‘‘A franchise to engage in professional football, basketball, baseball, or other professional sport, and any item acquired in connection with such a franchise.’’ Subsec. (f)(10). Pub. L. 108–357, § 847(b)(3), added par. (10). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by section 847(b)(3) of Pub. L. 108–357 ap- plicable to leases entered into after Oct. 3, 2004, see sec- tion 849(b)(4) of Pub. L. 108–357, set out as an Effective Date note under section 470 of this title. Pub. L. 108–357, title VIII, § 886(c), Oct. 22, 2004, 118 Stat. 1641, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 1245 and 1253 of this title and re- pealing section 1056 of this title] shall apply to prop- erty acquired after the date of the enactment of this Act [Oct. 22, 2004]. ‘‘(2) SECTION 1245.—The amendment made by sub- section (b)(2) [amending section 1245 of this title] shall apply to franchises acquired after the date of the enact- ment of this Act [Oct. 22, 2004].’’ EFFECTIVE DATE Pub. L. 103–66, title XIII, § 13261(g), Aug. 10, 1993, 107 Stat. 540, as amended by Pub. L. 104–188, title I, § 1703(l), Aug. 20, 1996, 110 Stat. 1877, provided that: ‘‘(1) IN GENERAL.—Except as otherwise provided in this subsection, the amendments made by this section [enacting this section and amending sections 167, 642, 848, 1016, 1060, 1245, and 1253 of this title] shall apply with respect to property acquired after the date of the enactment of this Act [Aug. 10, 1993]. ‘‘(2) ELECTION TO HAVE AMENDMENTS APPLY TO PROP- ERTY ACQUIRED AFTER JULY 25, 1991.— ‘‘(A) IN GENERAL.—If an election under this para- graph applies to the taxpayer— ‘‘(i) the amendments made by this section shall apply to property acquired by the taxpayer after July 25, 1991, ‘‘(ii) subsection (c)(1)(A) of section 197 of the In- ternal Revenue Code of 1986 (as added by this sec- tion) (and so much of subsection (f)(9)(A) of such section 197 as precedes clause (i) thereof) shall be applied with respect to the taxpayer by treating July 25, 1991, as the date of the enactment of such section, and ‘‘(iii) in applying subsection (f)(9) of such section, with respect to any property acquired by the tax- payer or a related person on or before the date of the enactment of this Act, only holding or use on July 25, 1991, shall be taken into account. ‘‘(B) ELECTION.—An election under this paragraph shall be made at such time and in such manner as the Secretary of the Treasury or his delegate may pre- scribe. Such an election by any taxpayer, once made— ‘‘(i) may be revoked only with the consent of the Secretary, and ‘‘(ii) shall apply to the taxpayer making such election and any other taxpayer under common control with the taxpayer (within the meaning of subparagraphs (A) and (B) of section 41(f)(1) of such Code) at any time after August 2, 1993, and on or be- fore the date on which such election is made. ‘‘(3) ELECTIVE BINDING CONTRACT EXCEPTION.— ‘‘(A) IN GENERAL.—The amendments made by this section shall not apply to any acquisition of property by the taxpayer if— ‘‘(i) such acquisition is pursuant to a written binding contract in effect on the date of the enact- ment of this Act and at all times thereafter before such acquisition, ‘‘(ii) an election under paragraph (2) does not apply to the taxpayer, and ‘‘(iii) the taxpayer makes an election under this paragraph with respect to such contract. ‘‘(B) ELECTION.—An election under this paragraph shall be made at such time and in such manner as the Secretary of the Treasury or his delegate shall pre- scribe. Such an election, once made— ‘‘(i) may be revoked only with the consent of the Secretary, and ‘‘(ii) shall apply to all property acquired pursuant to the contract with respect to which such election was made.’’ § 198. Expensing of environmental remediation costs (a) In general A taxpayer may elect to treat any qualified environmental remediation expenditure which is paid or incurred by the taxpayer as an expense which is not chargeable to capital account. Any expenditure which is so treated shall be allowed as a deduction for the taxable year in which it is paid or incurred. (b) Qualified environmental remediation expend- iture For purposes of this section— (1) In general The term ‘‘qualified environmental remedi- ation expenditure’’ means any expenditure— (A) which is otherwise chargeable to cap- ital account, and (B) which is paid or incurred in connection with the abatement or control of hazardous substances at a qualified contaminated site. (2) Special rule for expenditures for depre- ciable property Such term shall not include any expenditure for the acquisition of property of a character subject to the allowance for depreciation which is used in connection with the abate- ment or control of hazardous substances at a qualified contaminated site; except that the portion of the allowance under section 167 for such property which is otherwise allocated to such site shall be treated as a qualified envi- ronmental remediation expenditure. (c) Qualified contaminated site For purposes of this section— (1) In general The term ‘‘qualified contaminated site’’ means any area—