118 S1225 IS: Capital Gains Inflation Relief Act of 2023
U.S. Senate
2023-04-20
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EN
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II
118th CONGRESS
1st Session
S. 1225
IN THE SENATE OF THE UNITED STATES
April 20, 2023
Mr. Cruz (for himself, Mr. Braun, and Mr. Hagerty) introduced the following bill; which was read twice and referred to the Committee on Finance
A BILL
To amend the Internal Revenue Code of 1986 to provide for the indexing of certain assets for purposes of determining gain or loss.
1.

Short title
This Act may be cited as the “Capital Gains Inflation Relief Act of 2023”.
2.

Indexing of certain assets for purposes of determining gain or loss
(a)

In General
Part II of subchapter O of chapter 1 of the Internal Revenue Code of 1986 (relating to basis rules of general application) is amended by redesignating section 1023 as section 1024 and by inserting after section 1022 the following new section:
“1023.

Indexing of certain assets for purposes of determining gain or loss
(a)

General rule
(1)

Indexed basis substituted for adjusted basis
Solely for purposes of determining gain or loss on the sale or other disposition by a taxpayer (other than a corporation) of an indexed asset which has been held for more than 3 years, the indexed basis of the asset shall be substituted for its adjusted basis.
(2)

Exception for depreciation, etc
The deductions for depreciation, depletion, and amortization shall be determined without regard to the application of paragraph (1) to the taxpayer or any other person.
(3)

Written documentation requirement
Paragraph (1) shall apply only with respect to indexed assets for which the taxpayer has written documentation of the original purchase price paid or incurred by the taxpayer to acquire such asset.
(b)

Indexed asset
(1)

In general
For purposes of this section, the term indexed asset means—
(A)
any common stock in a C corporation (other than a foreign corporation),
(B)
any digital asset, or
(C)
any tangible property,
which is a capital asset or property used in the trade or business (as defined in section 1231(b)).
(2)

Stock in certain foreign corporations included
For purposes of this section—
(A)

In general
The term indexed asset includes common stock in a foreign corporation which is regularly traded on an established securities market.
(B)

Exception
Subparagraph (A) shall not apply to—
(i)
stock of a foreign investment company,
(ii)
stock in a passive foreign investment company (as defined in section 1297),
(iii)
stock in a foreign corporation held by a United States person who meets the requirements of section 1248(a)(2), and
(iv)
stock in a foreign personal holding company.
(C)

Treatment of American depository receipts
An American depository receipt for common stock in a foreign corporation shall be treated as common stock in such corporation.
(3)

Digital asset
For purposes of this section, the term digital asset means any natively electronic asset which—
(A)
is recorded on a cryptographically secured distributed ledger, and
(B)
is designed to confer only economic or access rights.
(c)

Indexed basis
For purposes of this section—
(1)

General rule
The indexed basis for any asset is—
(A)
the adjusted basis of the asset, increased by
(B)
the applicable inflation adjustment.
(2)

Applicable inflation adjustment
The applicable inflation adjustment for any asset is an amount equal to—
(A)
the adjusted basis of the asset, multiplied by
(B)
the percentage (if any) by which—
(i)
the gross domestic product deflator for the last calendar quarter ending before the asset is disposed of, exceeds
(ii)
the gross domestic product deflator for the last calendar quarter ending before the asset was acquired by the taxpayer.
The percentage under subparagraph (B) shall be rounded to the nearest 1/10 of 1 percentage point.
(3)

Gross domestic product deflator
The gross domestic product deflator for any calendar quarter is the implicit price deflator for the gross domestic product for such quarter (as shown in the last revision thereof released by the Secretary of Commerce before the close of the following calendar quarter).
(d)

Suspension of holding period where diminished risk of loss; treatment of short sales
(1)

In general
If the taxpayer (or a related person) enters into any transaction which substantially reduces the risk of loss from holding any asset, such asset shall not be treated as an indexed asset for the period of such reduced risk.
(2)

Short sales
(A)

In general
In the case of a short sale of an indexed asset with a short sale period in excess of 3 years, for purposes of this title, the amount realized shall be an amount equal to the amount realized (determined without regard to this paragraph) increased by the applicable inflation adjustment. In applying subsection (c)(2) for purposes of the preceding sentence, the date on which the property is sold short shall be treated as the date of acquisition and the closing date for the sale shall be treated as the date of disposition.
(B)

Short sale period
For purposes of subparagraph (A), the short sale period begins on the day that the property is sold and ends on the closing date for the sale.
(e)

Treatment of regulated investment companies and real estate investment trusts
(1)

Adjustments at entity level
(A)

In general
Except as otherwise provided in this paragraph, the adjustment under subsection (a) shall be allowed to any qualified investment entity (including for purposes of determining the earnings and profits of such entity).
(B)

Exception for corporate shareholders
Under regulations—
(i)
in the case of a distribution by a qualified investment entity (directly or indirectly) to a corporation—
(I)
the determination of whether such distribution is a dividend shall be made without regard to this section, and
(II)
the amount treated as gain by reason of the receipt of any capital gain dividend shall be increased by the percentage by which the entity’s net capital gain for the taxable year (determined without regard to this section) exceeds the entity’s net capital gain for such year determined with regard to this section, and
(ii)
there shall be other appropriate adjustments (including deemed distributions) so as to ensure that the benefits of this section are not allowed (directly or indirectly) to corporate shareholders of qualified investment entities.
For purposes of the preceding sentence, any amount includible in gross income under section 852(b)(3)(D) shall be treated as a capital gain dividend and an S corporation shall not be treated as a corporation.
(C)

Exception for qualification purposes
This section shall not apply for purposes of sections 851(b) and 856(c).
(D)

Exception for certain taxes imposed at entity level
(i)

Tax on failure to distribute entire gain
If any amount is subject to tax under section 852(b)(3)(A) for any taxable year, the amount on which tax is imposed under such section shall be increased by the percentage determined under subparagraph (B)(i)(II). A similar rule shall apply in the case of any amount subject to tax under paragraph (2) or (3) of section 857(b) to the extent attributable to the excess of the net capital gain over the deduction for dividends paid determined with reference to capital gain dividends only. The first sentence of this clause shall not apply to so much of the amount subject to tax under section 852(b)(3)(A) as is designated by the company under section 852(b)(3)(D).
(ii)

Other taxes
This section shall not apply for purposes of determining the amount of any tax imposed by paragraph (4), (5), or (6) of section 857(b).
(2)

Adjustments to interests held in entity
(A)

Regulated investment companies
Stock in a regulated investment company (within the meaning of section 851) shall be an indexed asset for any calendar quarter in the same ratio as—
(i)
the average of the fair market values of the indexed assets held by such company at the close of each month during such quarter, bears to
(ii)
the average of the fair market values of all assets held by such company at the close of each such month.
(B)

Real estate investment trusts
Stock in a real estate investment trust (within the meaning of section 856) shall be an indexed asset for any calendar quarter in the same ratio as—
(i)
the fair market value of the indexed assets held by such trust at the close of such quarter, bears to
(ii)
the fair market value of all assets held by such trust at the close of such quarter.
(C)

Ratio of 80 percent or more
If the ratio for any calendar quarter determined under subparagraph (A) or (B) would (but for this subparagraph) be 80 percent or more, such ratio for such quarter shall be 100 percent.
(D)

Ratio of 20 percent or less
If the ratio for any calendar quarter determined under subparagraph (A) or (B) would (but for this subparagraph) be 20 percent or less, such ratio for such quarter shall be zero.
(E)

Look-thru of partnerships
For purposes of this paragraph, a qualified investment entity which holds a partnership interest shall be treated (in lieu of holding a partnership interest) as holding its proportionate share of the assets held by the partnership.
(3)

Treatment of return of capital distributions
Except as otherwise provided by the Secretary, a distribution with respect to stock in a qualified investment entity which is not a dividend and which results in a reduction in the adjusted basis of such stock shall be treated as allocable to stock acquired by the taxpayer in the order in which such stock was acquired.
(4)

Qualified investment entity
For purposes of this subsection, the term qualified investment entity means—
(A)
a regulated investment company (within the meaning of section 851), and
(B)
a real estate investment trust (within the meaning of section 856).
(f)

Other pass-Thru entities
(1)

Partnerships
(A)

In general
In the case of a partnership, the adjustment made under subsection (a) at the partnership level shall be passed through to the partners.
(B)

Special rule in the case of section 754 elections
In the case of a transfer of an interest in a partnership with respect to which the election provided in section 754 is in effect—
(i)
the adjustment under section 743(b)(1) shall, with respect to the transferor partner, be treated as a sale of the partnership assets for purposes of applying this section, and
(ii)
with respect to the transferee partner, the partnership’s holding period for purposes of this section in such assets shall be treated as beginning on the date of such adjustment.
(2)

S corporations
In the case of an S corporation, the adjustment made under subsection (a) at the corporate level shall be passed through to the shareholders. This section shall not apply for purposes of determining the amount of any tax imposed by section 1374 or 1375.
(3)

Common trust funds
In the case of a common trust fund, the adjustment made under subsection (a) at the trust level shall be passed through to the participants.
(4)

Indexing adjustment disregarded in determining loss on sale of interest in entity
Notwithstanding the preceding provisions of this subsection, for purposes of determining the amount of any loss on a sale or exchange of an interest in a partnership, S corporation, or common trust fund, the adjustment made under subsection (a) shall not be taken into account in determining the adjusted basis of such interest.
(g)

Dispositions between related persons
(1)

In general
This section shall not apply to any sale or other disposition of property between related persons except to the extent that the basis of such property in the hands of the transferee is a substituted basis.
(2)

Related persons defined
For purposes of this section, the term related persons means—
(A)
persons bearing a relationship set forth in section 267(b), and
(B)
persons treated as single employer under subsection (b) or (c) of section 414.
(h)

Transfers To increase indexing adjustment
If any person transfers cash, debt, or any other property to another person and the principal purpose of such transfer is to secure or increase an adjustment under subsection (a), the Secretary may disallow part or all of such adjustment or increase.
(i)

Special rules
For purposes of this section—
(1)

Treatment of improvements, etc
If there is an addition to the adjusted basis of any tangible property or of any stock in a corporation during the taxable year by reason of an improvement to such property or a contribution to capital of such corporation—
(A)
such addition shall never be taken into account under subsection (c)(1)(A) if the aggregate amount thereof during the taxable year with respect to such property or stock is less than $1,000, and
(B)
such addition shall be treated as a separate asset acquired at the close of such taxable year if the aggregate amount thereof during the taxable year with respect to such property or stock is $1,000 or more.
A rule similar to the rule of the preceding sentence shall apply to any other portion of an asset to the extent that separate treatment of such portion is appropriate to carry out the purposes of this section.
(2)

Assets which are not indexed assets throughout holding period
The applicable inflation adjustment shall be appropriately reduced for periods during which the asset was not an indexed asset.
(3)

Treatment of certain distributions
A distribution with respect to stock in a corporation which is not a dividend shall be treated as a disposition.
(4)

Section cannot increase ordinary loss
To the extent that (but for this paragraph) this section would create or increase a net ordinary loss to which section 1231(a)(2) applies or an ordinary loss to which any other provision of this title applies, such provision shall not apply. The taxpayer shall be treated as having a long-term capital loss in an amount equal to the amount of the ordinary loss to which the preceding sentence applies.
(5)

Acquisition date where there has been prior application of subsection (a)(1) with respect to the taxpayer
If there has been a prior application of subsection (a)(1) to an asset while such asset was held by the taxpayer, the date of acquisition of such asset by the taxpayer shall be treated as not earlier than the date of the most recent such prior application.
(j)

Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section.”.
(b)

Clerical amendment
The table of sections for part II of subchapter O of chapter 1 of the Internal Revenue Code of 1986 is amended by striking the item relating to section 1023 and by inserting after the item relating to section 1022 the following new item:
“Sec. 1023. Indexing of certain assets for purposes of determining gain or loss.
Sec. 1024. Cross references.”.
(c)

Effective date
The amendments made by this section shall apply to indexed assets acquired by the taxpayer after December 31, 2023, in taxable years ending after such date.