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 Section 1244 stock for Stock issued from Convertible Notes

Jeffrey Basch's profile image
Jeffrey Basch posted 03-29-2025 06:40

I got the below summary from AI. I believe it is correct but would welcome any +1's or references that suggest that the stock could qualify for Section 1244 treatment.

If you issue $2.36 million of convertible notes in one year and they convert to stock in the next year, the stock generally does not qualify as Section 1244 stock for several reasons:

1.       Exceeding the $1 Million Threshold: The corporation's aggregate capital receipts exceed $1 million when the convertible notes are issued. Once this threshold is surpassed, the corporation cannot issue additional Section 1244 stock in subsequent years, even if the notes convert to stock later[1][2].

2.       Stock Issued in Exchange for Securities: Section 1244 stock must be issued in exchange for cash or other property (not including stock or securities). Since the stock is issued in exchange for convertible notes (a type of security), it typically does not meet this requirement[1][2].

3.       Exceptions: There are exceptions, such as stock issued as part of a reorganization under Section 368(a)(1)(E) or (F), but these do not apply to the conversion of convertible notes[1][2].

In summary, the stock resulting from the conversion of $2.36 million in convertible notes generally does not qualify as Section 1244 stock due to exceeding the $1 million threshold and being issued in exchange for securities.

1.       https://www.thetaxadviser.com/issues/2009/mar/claimingordinarylossesforsec1244stock.html  

2.       http://archives.cpajournal.com/old/15703009.htm  

Jeffrey Basch's profile image
Jeffrey Basch

Research says AI is wrong:

Actual clauses from regulations:

1)       A corporation, trust, or estate is not entitled to ordinary loss treatment under section 1244 regardless of how the stock was acquired.(1.1244(a)-1(b)(2)

2)       the maximum amount that may be treated as an ordinary loss under section 1244 is: (i) $50,000, or (ii) $100,000, if a husband and wife file a joint return under section 6013. (1.1244(b)-1(b)

3)       Stock issued in consideration for cancellation of indebtedness of the corporation shall be considered issued in exchange for money or other property unless such indebtedness is evidenced by a security, or arises out of the performance of personal services.  1.1244(c)-1(d)(1)

4)       stock will not qualify under section 1244, if 50 percent or more of the gross receipts of the corporation, for the period consisting of the five most recent taxable years of the corporation ending before the date the loss on such stock is sustained by the shareholders, is derived from royalties, rents, dividends, interest, annuities, and sales or exchanges of stock or securities. (1.1244(c)-1(e)(1)(i)(a)). The requirement of subparagraph (1) of this paragraph need not be satisfied if for the applicable period the aggregate amount of deductions allowed to the corporation exceeds the aggregate amount of its gross income. But for this purpose the deductions allowed by section 172, relating to the net operating loss deduction, and by sections 242, 243, 244, and 245, relating to certain special deductions for corporations, shall not be taken into account. (1.1244(c)-1(e)(2))

5)       Amount received by corporation for stock. Capital receipts of a small business corporation may not exceed $1,000,000. For purposes of this paragraph the term capital receipts means the aggregate dollar amount received by the corporation for its stock, as a contribution to capital, and as paid-in surplus. (1.1244(c)-2(b))