Writing Off Worthless Stock Investments

Posted on Wednesday, December 13, 2017

Over the years, many of us have bought stock in a company that later failed. Examples include Enron, Adelphia, Global Crossing, Worldcom and K-Mart (before its resurrection). While you may prefer to forget such ill-fated investments, don't forget to claim your rightful capital loss deduction on your tax return.

What About Losses on Stock
Held in a Traditional IRA?

    Suppose you are unfortunate enough to own worthless, or nearly worthless, stock in a traditional IRA. Can you write it off? Sadly, the answer is probably not.
    Reason: In general, money invested in an IRA is pre-tax. So if you're allowed to write-off a subsequent loss, that would be double-dipping, or taking two tax breaks on the same dollars.
    On the other hand, if some contributions made to the IRA were non-deductible, you might get a write-off. According to the IRS, your basis in an IRA is equal to non-deductible contributions. Earnings on the account, plus tax-deductible contributions, aren't part of your basis. In order to claim a loss, you have to show that part of your basis was lost. In other words, a loss would have to be large enough to wipe out your tax deductible contributions and your earnings...an unlikely scenario.

However, figuring out when to claim a worthless stock loss can be tricky.

Here are the two ways you can salvage some tax savings from unfortunate stock market forays:

Number 1: Trigger a capital loss deduction by selling the worthless shares. However, your write-off is limited to the amount of any capital gains for the year, plus $3,000 (or $1,500 if you use married filing separate status). After this, any leftover capital loss gets carried over to next year -- subject to the same $3,000 (or $1,500) limitation.

Number 2: Wait and claim a capital loss deduction after your shares have become wholly worthless. (Under the Tax Code, you get no deduction for partial worthlessness.) Once again, your write-off is limited to the amount of any capital gains for the year, plus $3,000 (or $1,500 if you use married filing separate status).

Beware: Bankruptcy May Not Trigger Worthlessness

Unfortunately, relying on the worthlessness rule (Number 2) can be tricky. Here's why. You must correctly identify the year when the shares become totally worthless and then claim your write-off in that year and that year only. This sounds pretty simple, but sometimes it isn't. Why? Because the IRS doesn't consider your battered and bruised shares to be wholly worthless until it's clear they have no liquidation value and there's no hope they will regain any value in the future.

Over the years, there have been many attempts to interpret this principle but the situation remains confusing. For example, the IRS has stated that bankruptcy proceedings don't necessarily establish complete worthlessness for a company's stock. (IRS Revenue Ruling 77-17) Why? Because shareholders are not always totally wiped out. There is some hope that the shares could become valuable again. Several court decisions have taken more taxpayer-friendly views of this issue, but they don't establish any firm guidelines.

This confusion is only made worse by the fact that shares of delisted bankrupt companies may continue to trade on the over-the-counter market (via a system called the "Pink Sheets") even after it is clear that shareholders will get nothing in the bankruptcy proceedings and the shares have been legally cancelled. While this seems to make no sense, it happens.

Cancelled shares of a delisted bankrupt company may be trading for a few cents each (or a fraction of a cent) on the Pink Sheets market and still not qualify as worthless by some IRS auditors. Sticklers might disallow losses until all trading in the shares has ceased. Who knows how long that might take?

Of course, the simplest solution is to sell any shares you believe will soon be worthless while they are still listed on the NYSE, NASDAQ, or American Stock Exchange. Taking this step has two big advantages:

First, you'll net at least some cash. If you procrastinate, you may wind up with nothing.
Second, selling the shares unequivocally triggers a tax loss. In contrast, if you hang on, you risk entering the Pink Sheet system for delisted stocks -- where it's unclear if you can claim any loss until you actually sell. And if you don't sell, it could be a long wait before the stock becomes completely worthless in the eyes of the IRS and you qualify for a tax write-off.

If You Hang on, You Have Extra Time to Figure When to Claim a Loss

For whatever reason, you might decide to hold onto distressed shares until it becomes abundantly clear that they are indeed totally worthless. The Tax Code says you must claim your capital loss in the year when such total worthlessness occurs. For the reasons explained earlier, however, it's not always clear exactly which year that is.

A little-known exception in the tax law grants taxpayers a seven-year statute of limitations period -- instead of the normal three years -- to claim a worthless stock loss. Why? Because Congress recognizes that determining the proper year to claim a worthless stock loss can be problematic. So the special seven-year statute of limitations period gives you an extra four years to figure it out. (Source: Internal Revenue Code Section 6511(d)(1))

As you can see, there are potential problems with claiming worthless stock losses. Clearly, the best course of action is to sell distressed shares before they are delisted, trigger your capital loss, and move on while avoiding all the issues and hassles explained in this article. If you procrastinate and the stock becomes delisted, follow the tax filing advice above. Contact your tax adviser if you have questions or want more information.

Posted in Tax Topics For Individuals

Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.

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