1. Net Operating Losses (NOLs)
Revenue Ruling 74-175 helps to address this issue. The Revenue Ruling indicates that if the deceased spouse had any individual NOLs, these can not be transferred to the surviving spouse. However, any joint NOLs (if applicable) can be carried forward.
Only the taxpayer who sustains the loss is entitled to take the deduction. Thus, the loss cannot be transferred to another taxpayer including the surviving spouse.
The NOLs will need to be traced to the business interest that created it. If owned by the decedent, then the loss is only available on the final income tax return. Any amount not completely used will be lost on subsequent income tax returns filed by the surviving spouse.
Proper documentation is crucial to substantiate NOLs. Keep records of tax returns and any NOL calculations.
2. Capital Loss Carryovers
Similar to net operating losses, Revenue Ruling 74-175 helps to address this issue. Only the taxpayer who sustains the loss is entitled to take the deduction. Thus, sales of capital assets will require a tracing to the original owner to determine who is entitled to the capital loss carryover.
If the decedent, then the loss is only available on the final income tax return. If the surviving spouse, then the loss can be carried forward to subsequent income tax returns.
3. Charitable Contribution Carryovers
Charitable contribution carryovers allocated to the decedent will also be lost upon the death of the taxpayer if not used on the final income tax return.
IRC Regulation Section 1.170A-10(d)(4)(i) addresses charitable contribution carryovers upon the death of a spouse. Per the regulations, a joint filer’s original charitable contribution must be recomputed as if two separate income tax returns were filed and not a joint tax return for the year of contribution.
Any amount allocable to the decedent is lost on a subsequent income tax return filed by the surviving spouse.