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119th Congress

Title 26 — Internal Revenue Code

Part III · Chapter 1 — Normal Taxes and Surtaxes

§ 1043. Sale of property to comply with conflict-of-interest requirements

Statutory text

(a)

Nonrecognition of gain

If an eligible person sells any property pursuant to a certificate of divestiture, at the election of the taxpayer, gain from such sale shall be recognized only to the extent that the amount realized on such sale exceeds the cost (to the extent not previously taken into account under this subsection) of any permitted property purchased by the taxpayer during the 60-day period beginning on the date of such sale.

(b)

Definitions

For purposes of this section—

(1)

Eligible person

The term “eligible person” means—

(A)

an officer or employee of the executive branch, or a judicial officer, of the Federal Government, but does not mean a special Government employee as defined in section 202 of title 18, United States Code, and

(B)

any spouse or minor or dependent child whose ownership of any property is attributable under any statute, regulation, rule, judicial canon, or executive order referred to in paragraph (2) to a person referred to in subparagraph (A).

(2)

Certificate of divestiture

The term “certificate of divestiture” means any written determination—

(A)

that states that divestiture of specific property is reasonably necessary to comply with any Federal conflict of interest statute, regulation, rule, judicial canon, or executive order (including section 208 of title 18, United States Code), or requested by a congressional committee as a condition of confirmation,

(B)

that has been issued by the President or the Director of the Office of Government Ethics, in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers, and

(C)

that identifies the specific property to be divested.

(3)

Permitted property

The term “permitted property” means any obligation of the United States or any diversified investment fund approved by regulations issued by the Office of Government Ethics.

(4)

Purchase

The taxpayer shall be considered to have purchased any permitted property if, but for subsection (c), the unadjusted basis of such property would be its cost within the meaning of section 1012.

(5)

Special rule for trusts

For purposes of this section, the trustee of a trust shall be treated as an eligible person with respect to property which is held in the trust if—

(A)

any person referred to in paragraph (1)(A) has a beneficial interest in the principal or income of the trust, or

(B)

any person referred to in paragraph (1)(B) has a beneficial interest in the principal or income of the trust and such interest is attributable under any statute, regulation, rule, judicial canon, or executive order referred to in paragraph (2) to a person referred to in paragraph (1)(A).

(6)

Judicial officer

The term “judicial officer” means the Chief Justice of the United States, the Associate Justices of the Supreme Court, and the judges of the United States courts of appeals, United States district courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands, Court of Appeals for the Federal Circuit, Court of International Trade, Tax Court, Court of Federal Claims, Court of Appeals for Veterans Claims, United States Court of Appeals for the Armed Forces, and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior.

(c)

Basis adjustments

If gain from the sale of any property is not recognized by reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis for determining gain or loss of any permitted property which is purchased by the taxpayer during the 60-day period described in subsection (a).

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

  1. Ethics Reform Act of 1989

    Pub. L. 101–194 title V § 502(a) · 103 Stat. 1716

    Enacted · 26 U.S.C. § 1043

    Added Pub. L. 101–194, title V, § 502(a), Nov. 30, 1989, 103 Stat. 1754

    Source evidence

    Code source credit
    Added Pub. L. 101–194, title V, § 502(a), Nov. 30, 1989, 103 Stat. 1754

  2. Pub. L. 101–280 § 6(a)(1) · 104 Stat. 149

    Added · 26 U.S.C. § 1043(b)(5)

    Pub. L. 101–280 added par. (5)

    Source evidence

    Code amendment note
    Subsec. (b)(5). Pub. L. 101–280 added par. (5).

    Enacted provision · exact public law section
    (1) Subsection (b) of section 1043 of the Internal 26 USC 1043. Revenue Code of 1986 is amended by adding at the end thereof the following new paragraph: “(5) Special rule for trusts.— For purposes of this section, the trustee of a trust shall be treated as an eligible person with respect to property which is held in the trust if— “(A) any person referred to in paragraph (1)(A) has a beneficial interest in the principal or income of the trust, or “(B) any person referred to in paragraph (1)(B) has a beneficial interest in the principal or income of the trust and such interest is attributable under any statute, regulation, rule, or executive order referred to in paragraph (2) to a person referred to in paragraph (1)(A).”.

  3. Revenue Reconciliation Act of 1990

    Pub. L. 101–508 title XI § 11703(a)(1) · 104 Stat. 1388

    Substituted · 26 U.S.C. § 1043(a)

    Pub. L. 101–508 substituted “to the extent not previously taken into account under this subsection” for “reduced by any basis adjustment under subsection (c) attributable to a prior sale”

    Source evidence

    Code amendment note
    Subsec. (a). Pub. L. 101–508 substituted “to the extent not previously taken into account under this subsection” for “reduced by any basis adjustment under subsection (c) attributable to a prior sale”.

    Enacted provision · exact public law section
    (1) In general.— Subsection (a) of section 1043 is amended by striking “reduced by any basis adjustment under subsection (c) attributable to a prior sale” and inserting “to the extent not previously taken into account under this subsection”.

  4. Tax Relief and Health Care Act of 2006

    Pub. L. 109–432 § 418(a)(1)(A) · 120 Stat. 2922

    Inserted · 26 U.S.C. § 1043(b)(1)(A)

    Pub. L. 109–432, § 418(a)(1)(A), inserted “, or a judicial officer,” after “executive branch”

    Source evidence

    Code amendment note
    Subsec. (b)(1)(A). Pub. L. 109–432, § 418(a)(1)(A), inserted “, or a judicial officer,” after “executive branch”.

    Enacted provision · exact public law section
    (A) in subparagraph (A), by inserting “, or a judicial officer,” after “an officer or employee of the executive branch”; and

    Effective date note
    Pub. L. 109–432, div. A, title IV, § 418(c), Dec. 20, 2006, 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [Dec. 20, 2006].”

  5. Tax Relief and Health Care Act of 2006

    Pub. L. 109–432 § 418(a)(1)(B) · 120 Stat. 2922

    Inserted · 26 U.S.C. § 1043(b)(1)(B); 26 U.S.C. § 1043(b)(2)(A)

    Pub. L. 109–432, § 418(a)(1)(B), (2)(A), inserted “judicial canon,” after “rule,”

    Source evidence

    Code amendment note
    Subsec. (b)(1)(B), (2)(A). Pub. L. 109–432, § 418(a)(1)(B), (2)(A), inserted “judicial canon,” after “rule,”.

    Enacted provision · exact public law section
    (B) in subparagraph (B), by inserting “judicial canon,” after “any statute, regulation, rule,”;

    Effective date note
    Pub. L. 109–432, div. A, title IV, § 418(c), Dec. 20, 2006, 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [Dec. 20, 2006].”

  6. Tax Relief and Health Care Act of 2006

    Pub. L. 109–432 § 418(a)(2)(B) · 120 Stat. 2922

    Inserted · 26 U.S.C. § 1043(b)(2)(B)

    Pub. L. 109–432, § 418(a)(2)(B), inserted “in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers,” after “Ethics,”

    Source evidence

    Code amendment note
    Subsec. (b)(2)(B). Pub. L. 109–432, § 418(a)(2)(B), inserted “in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers,” after “Ethics,”.

    Enacted provision · exact public law section
    (B) in subparagraph (B), by inserting after “the Director of the Office of Government Ethics,” the following: “in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers,”; and

    Effective date note
    Pub. L. 109–432, div. A, title IV, § 418(c), Dec. 20, 2006, 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [Dec. 20, 2006].”

  7. Tax Relief and Health Care Act of 2006

    Pub. L. 109–432 § 418(a)(3) · 120 Stat. 2922

    Inserted · 26 U.S.C. § 1043(b)(5)(B)

    Pub. L. 109–432, § 418(a)(3), inserted “judicial canon,” after “rule,”

    Source evidence

    Code amendment note
    Subsec. (b)(5)(B). Pub. L. 109–432, § 418(a)(3), inserted “judicial canon,” after “rule,”.

    Enacted provision · exact public law section
    (3) in paragraph (5)(B), by inserting “judicial canon,” after “any statute, regulation, rule,”.

    Effective date note
    Pub. L. 109–432, div. A, title IV, § 418(c), Dec. 20, 2006, 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [Dec. 20, 2006].”

  8. Tax Relief and Health Care Act of 2006

    Pub. L. 109–432 § 418(b) · 120 Stat. 2922

    Added · 26 U.S.C. § 1043(b)(6)

    Pub. L. 109–432, § 418(b), added par. (6)

    Source evidence

    Code amendment note
    Subsec. (b)(6). Pub. L. 109–432, § 418(b), added par. (6).

    Enacted provision · exact public law section
    (b) Judicial Officer Defined.— Section 1043(b) is amended by adding at the end the following new paragraph: “(6) Judicial officer.— The term ‘judicial officer’ means the Chief Justice of the United States, the Associate Justices of the Supreme Court, and the judges of the United States courts of appeals, United States district courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands, Court of Appeals for the Federal Circuit, Court of International Trade, Tax Court, Court of Federal Claims, Court of Appeals for Veterans Claims, United States Court of Appeals for the Armed Forces, and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior.” .

    Effective date note
    Pub. L. 109–432, div. A, title IV, § 418(c), Dec. 20, 2006, 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [Dec. 20, 2006].”

7 of 8 references resolved to an enrolled provision · 1 partial

Editorial Notes

Amendments1990–2006 · 2 rounds

2006

Subsec. (b)(1)(A). Pub. L. 109–432, § 418(a)(1)(A), inserted “, or a judicial officer,” after “executive branch”.

Subsec. (b)(1)(B), (2)(A). Pub. L. 109–432, § 418(a)(1)(B), (2)(A), inserted “judicial canon,” after “rule,”.

Subsec. (b)(2)(B). Pub. L. 109–432, § 418(a)(2)(B), inserted “in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers,” after “Ethics,”.

Subsec. (b)(5)(B). Pub. L. 109–432, § 418(a)(3), inserted “judicial canon,” after “rule,”.

Subsec. (b)(6). Pub. L. 109–432, § 418(b), added par. (6).

1990

Subsec. (a). Pub. L. 101–508 substituted “to the extent not previously taken into account under this subsection” for “reduced by any basis adjustment under subsection (c) attributable to a prior sale”.

Subsec. (b)(5). Pub. L. 101–280 added par. (5).

Statutory Notes and Related Subsidiaries

Effective Date of 2006 Amendment

Pub. L. 109–432, div. A, title IV, § 418(c), , 120 Stat. 2967, provided that: “The amendments made by this section [amending this section] shall apply to sales after the date of enactment of this Act [].”

Effective Date of 1990 Amendment

Pub. L. 101–508, title XI, § 11703(a)(2), , 104 Stat. 1388–517, provided that: “The amendment made by paragraph (1) [amending this section] shall apply to sales after .”

Pub. L. 101–280, § 6(a)(3), , 104 Stat. 160, provided that: “The amendment made by paragraph (1) [amending this section] and the provisions of paragraph (2) [set out below] shall apply to sales after .”

Effective Date

Section applicable to sales after , see section 502(c) of Pub. L. 101–194, set out as an Effective Date of 1989 Amendment note under section 1016 of this title.

Property Sold Before June 19, 1990

Pub. L. 101–280, § 6(a)(2), , 104 Stat. 160, provided that:

“(A)

For purposes of section 1043 of such Code—

“(i)

any property sold before , shall be treated as sold pursuant to a certificate of divestiture (as defined in subsection (b)(2) thereof) if such a certificate is issued with respect to such sale before such date, and

“(ii)

in any such case, the 60-day period referred to in subsection (a) thereof shall not expire before the end of the 60-day period beginning on the date on which the certificate of divestiture was issued.

“(B)

Notwithstanding subparagraph (A), section 1043 of such Code shall not apply to any sale before , unless—

“(i)

the sale was made in order to comply with an ethics agreement or pursuant to specific direction from the appropriate agency or confirming committee, and

“(ii)

the justification for the sale meets the criteria set forth in subsection (b)(2)(A) thereof as implemented by the interim regulations implementing such section 1043, published on .”

Credits

1989–2006 · 4 acts
  1. 1989Added Pub. L. 101–194, title V, § 502(a), , 103 Stat. 1754
  2. 1990amended Pub. L. 101–280, § 6(a)(1), , 104 Stat. 160
  3. 1990Pub. L. 101–508, title XI, § 11703(a)(1), , 104 Stat. 1388–516
  4. 2006Pub. L. 109–432, div. A, title IV, § 418(a), (b), , 120 Stat. 2966.
Show as published

(Added Pub. L. 101–194, title V, § 502(a), , 103 Stat. 1754; amended Pub. L. 101–280, § 6(a)(1), , 104 Stat. 160; Pub. L. 101–508, title XI, § 11703(a)(1), , 104 Stat. 1388–516; Pub. L. 109–432, div. A, title IV, § 418(a), (b), , 120 Stat. 2966.)

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USLM identifier /us/usc/t26/s1043