§1091 — Title 26 Internal Revenue Code | U.S. Code

Summary

If you sell stock or securities at a loss and, within 30 days before or after the sale, you buy substantially identical stock or securities — or even enter a contract or option to buy them — the loss is a wash sale and you cannot deduct it. The rule still applies if the contract or option could be settled in cash instead of actual shares. The only carve-out is for dealers in stock or securities who take the loss in the ordinary course of their business. The disallowed loss is not gone forever. Your basis in the replacement shares is set from the basis of the shares you sold, adjusted for any difference between what you paid for the new shares and what you sold the old ones for — so the loss is preserved for when you finally sell. If you buy back fewer shares than you sold, regulations decide which shares' losses are blocked. A similar rule blocks losses on closing a short sale when substantially identical stock is sold, or another short sale is opened, within the same 30-day window.

Title 26, §1091

Internal Revenue Code — Source: USLM XML via OLRC

(a)In the case of any loss claimed to have been sustained from any sale or other disposition of shares of stock or securities where it appears that, within a period beginning 30 days before the date of such sale or disposition and ending 30 days after such date, the taxpayer has acquired (by purchase or by an exchange on which the entire amount of gain or loss was recognized by law), or has entered into a contract or option so to acquire, substantially identical stock or securities, then no deduction shall be allowed under section 165 unless the taxpayer is a dealer in stock or securities and the loss is sustained in a transaction made in the ordinary course of such business. For purposes of this section, the term “stock or securities” shall, except as provided in regulations, include contracts or options to acquire or sell stock or securities.

(b)If the amount of stock or securities acquired (or covered by the contract or option to acquire) is less than the amount of stock or securities sold or otherwise disposed of, then the particular shares of stock or securities the loss from the sale or other disposition of which is not deductible shall be determined under regulations prescribed by the Secretary.

(c)If the amount of stock or securities acquired (or covered by the contract or option to acquire) is not less than the amount of stock or securities sold or otherwise disposed of, then the particular shares of stock or securities the acquisition of which (or the contract or option to acquire which) resulted in the nondeductibility of the loss shall be determined under regulations prescribed by the Secretary.

(d)If the property consists of stock or securities the acquisition of which (or the contract or option to acquire which) resulted in the nondeductibility (under this section or corresponding provisions of prior internal revenue laws) of the loss from the sale or other disposition of substantially identical stock or securities, then the basis shall be the basis of the stock or securities so sold or disposed of, increased or decreased, as the case may be, by the difference, if any, between the price at which the property was acquired and the price at which such substantially identical stock or securities were sold or otherwise disposed of.

(e)Rules similar to the rules of subsection (a) shall apply to any loss realized on the closing of a short sale of (or the sale, exchange, or termination of a securities futures contract to sell) stock or securities if, within a period beginning 30 days before the date of such closing and ending 30 days after such date—

(1)substantially identical stock or securities were sold, or

(2)another short sale of (or securities futures contracts to sell) substantially identical stock or securities was entered into.

(f)This section shall not fail to apply to a contract or option to acquire or sell stock or securities solely by reason of the fact that the contract or option settles in (or could be settled in) cash or property other than such stock or securities.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2002—Subsec. (e). Pub. L. 107–147 substituted “securities and securities futures contracts to sell” for “securities” in heading, inserted “(or the sale, exchange, or termination of a securities futures contract to sell)” after “closing of a short sale of” in introductory provisions and “(or securities futures contracts to sell)” after “short sale of” in par. (2), and inserted concluding provisions. 2000—Subsec. (f). Pub. L. 106–554 added subsec. (f). 1988—Subsec. (a). Pub. L. 100–647 inserted sentence at end defining “stock or securities”. 1984—Subsec. (a). Pub. L. 98–369, § 106(b), substituted “no deduction shall be allowed under section 165 unless the taxpayer is a dealer in stock or securities and the loss is sustained in a transaction made in the ordinary course of such business” for “no deduction for the loss shall be allowed under section 165(c)(2); nor shall such deduction be allowed a corporation under section 165(a) unless it is a dealer in stocks or securities, and the loss is sustained in a transaction made in the ordinary course of business”. Subsec. (e). Pub. L. 98–369, § 106(a), added subsec. (e). 1976—Pub. L. 94–455 struck out “or his delegate” after “Secretary” wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date

of 2002 AmendmentAmendment by Pub. L. 107–147 effective as if included in the provisions of the Community Renewal Tax Relief Act of 2000 [H.R. 5662, as enacted by Pub. L. 106–554], to which such amendment relates, see section 412(e) of Pub. L. 107–147, set out as a note under section 151 of this title.

Effective Date

of 1988 Amendment Pub. L. 100–647, title V, § 5075(b), Nov. 10, 1988, 102 Stat. 3682, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to any sale after the date of enactment of this Act [Nov. 10, 1988], in taxable years ending after such date.”

Effective Date

of 1984 Amendment Pub. L. 98–369, div. A, title I, § 106(c),

July 18, 1984, 98 Stat. 629, provided that: “(1) Subsection (a).—The amendment made by subsection (a) [amending this section] shall apply to short sales of stock or securities after the date of the enactment of this Act [

July 18, 1984] in taxable years ending after such date. “(2) Subsection (b).—The amendment made by subsection (b) [amending this section] shall apply to sales after

December 31, 1984, in taxable years ending after such date.”

§1091 Loss From Wash Sales of Stock or Securities

Summary

Title 26, §1091

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Citations & Metadata