Mark Spitz - Page 12

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          imposed on the gain from exercise of the ISO results in payment             
          of tax on income the taxpayer may never actually receive.10                 
               In an attempt to avoid these harsh results petitioner                  
          asserts:  (1) The capital loss limitations under sections 1211(b)           
          and 1212(b) do not apply to the computation of AMTI; (2) he is              
          entitled to carry back capital losses as an ATNOL to reduce his             
          AMTI in the years at issue; and (3) he is not liable for                    
          accuracy-related penalties under section 6662 for the tax years             
          at issue.                                                                   
          B.   Section 1211                                                           
               Generally, losses generated by the sale or exchange of                 
          capital assets are allowed only to the extent allowed in sections           
          1211 and 1212.  Sec. 165(f).  Section 1211(b) requires a                    
          noncorporate taxpayer to first offset capital losses against                
          capital gains.  If aggregate capital losses exceed aggregate                
          capital gains, up to $3,000 of the excess may be deducted against           
          ordinary income.  Sec. 1211(b).  If a noncorporate taxpayer has             
          capital losses exceeding the limitations of section 1211(b), the            


               10 This became an acute problem in 2001 after the market               
          crash of the stock of so-called dot.com companies.  Many                    
          employees exercised ISOs in 1999 and 2000 at a time when the                
          underlying stock had substantially appreciated.  Also, many                 
          employees intentionally waited the 1-year holding period before             
          selling the stock in order to recognize capital gain, as opposed            
          to ordinary income, on the stock’s appreciation for regular tax             
          purposes.  In 2001, after the stock crash, the employees found              
          their stock’s value had substantially decreased, leaving the                
          employees with substantial AMT capital losses.                              





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Last modified: May 25, 2011