Casualty Loss Deductions: Identifying the Affected Property

Tax Alert
05.20.11

This year has seen an extraordinary succession of natural disasters, including floods, tornadoes, and fires. Taxpayers with property interests in the affected areas not only must deal with the physical damage, but they also must determine the resulting casualty loss deductions. In doing so, taxpayers need to carefully identify the property unit used to compute the deductions. As discussed below, the proper property unit may include items that did not sustain direct physical damage if the taxpayer manages and operates the property as an integrated unit.

Casualty Loss Rules

Section 165 permits a deduction for "any loss sustained during the taxable year and not compensated for by insurance or otherwise," including losses from "fire, storm, shipwreck, or other casualty." The amount of the casualty loss deduction generally equals the lesser of either: (i) the difference in the fair market value of the property before and after the casualty or (ii) the taxpayer's adjusted basis in the property. This provision allows the taxpayer to fully recover its lost investment, but it prevents deductions in excess of the taxpayer's investment because that excess reflects untaxed appreciation in the value of the property.

The regulations provide that the property's fair market value immediately before and after the casualty is determined "by competent appraisal." This appraisal may only take into account losses resulting from damage to the property, and not the effects of any simultaneous general market decline. A taxpayer may use the cost of repairs to the property as evidence if: (i) the repairs are necessary to restore the property to its condition immediately before the casualty, (ii) the amount spent for the repairs is not excessive, (iii) the repairs do not extend beyond the scope of the damage, and (iv) the value of the property after the repairs does not as a result of the repairs exceed the value of the property immediately before the casualty.

The casualty loss deduction rules, particularly the basis limitation, make it important to identify the damaged "property." The casualty loss regulations elaborate only slightly on the term "property," stating that the loss "shall be determined ... by reference to the single, identifiable property ("SIP") damaged or destroyed." As discussed below, Weyerhaeuser Co. v. U.S., 92 F.3d 1148 (Fed. Cir. 1996), rev'g in part 32 Fed. Cl. 80 (1994), cert. den. 519 U.S. 1091 (1997), provides further guidance, holding that the key is whether the property unit identified is operated and managed as an integrated unit.

The Weyerhaeuser Decision

In Weyerhaeuser, the taxpayer suffered casualties to its timber, logging roads and railroad. Because Weyerhaeuser managed these assets as integrated units, it claimed casualty loss deductions using the railroad, road systems, and timber depletion blocks as the appropriate SIPs. The government argued that the blocks were not SIPs because they included timber located outside the directly affected geographic areas.

The government argued that the SIP was some linear segment, such as the mile, with respect to the roads and railroad, and the tree "stand" (i.e., a cluster of trees that is sufficiently homogeneous to be distinguishable from growth on adjoining areas). The government argued that Weyerhaeuser was "borrowing basis" from assets outside the directly affected geographic area.

The U.S. Court of Federal Claims rejected the government's argument with respect to the roads and railroad because: (i) the utility of the roads and railroad "derive from their functioning as a whole"; (ii) the roads and railroad were not commercially divisible; and (iii) Weyerhaeuser accounted for the adjusted tax bases of the railroad and each road system in a single account. The court analogized these assets to a large office building, noting that it would be inappropriate to limit the SIP to one floor of a building if that were the only portion destroyed. But the court abandoned this rationale with respect to the timber losses, holding that the timber stand was the appropriate SIP. The court asserted without authority that the term "single, identifiable property" should be "constru[ed] narrowly" and "defined in terms of the least common denominator involved in the casualty."

The U.S. Court of Appeals for the Federal Circuit reversed the lower court's holding with respect to the timber losses because it was inconsistent with Westvaco Corp. v. U.S., 639 F.2d 700 (Ct. Cl. 1980). In Westvaco, the government asserted that the SIP with respect to timber losses was the depletion unit (a subset of the depletion block). Because the depletion blocks coincided with the taxpayer's timber management, the court concluded that it was "logical and reasonable" to treat the blocks as the SIP. What mattered to the Federal Circuit in Weyerhaeuser was that the depletion block served as the "property" for "commercial, forest management, and depletion purposes." Accordingly, for casualty losses involving timber, the SIP is the depletion block if the block serves "commercial, forest management, and depletion purposes."

Application

The principle that a taxpayer's SIP is not limited to the basis of the property that was actually destroyed -- or the smallest geographic area in which the casualty occurred -- applies to other industries, provided the taxpayer manages and operates the property as an integrated unit. Taxpayers should carefully analyze the physically damaged property to determine whether the taxpayer operated and managed it as part of a larger integrated unit. Taxpayers should be aware that the IRS has taken a conservative approach to the identification of the SIP in the context of an electrical utility and a telecommunication company. See, Industry Director's Directive #2 on Casualty Loss IRC 165; Technical Advice Memorandum 201014052 and Technical Advice Memorandum 200902011. Nonetheless, taxpayers should independently analyze their own specific facts and the authorities to determine the appropriate SIP for their damaged properties.

For further information, please contact Patricia Sweeney, psweeney@milchev.com, 202-626-5926.

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