Publication 946: How To Depreciate Property; Chapter 3 - Claiming the Special Depreciation Allowance (or Liberty Zone Depreciation Allowance)

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Table of Contents

Introduction

You can take a special depreciation allowance or special Liberty Zone depreciation allowance to recover part of the cost of qualified property or qualified Liberty Zone property placed in service during the tax year. The allowance applies only for the first year you place the property in service. For qualified property placed in service in 2004, you can take an additional 50% (or 30%, if applicable) special allowance. The allowance is an additional deduction you can take after any section 179 deduction and before you figure regular depreciation under MACRS for the year you place the property in service.

You cannot claim the special Liberty Zone depreciation allowance for property eligible for the special depreciation allowance (explained later under What Is Qualified Property ). Qualified property is eligible for only one special depreciation allowance.

This chapter explains what is qualified property and what is qualified Liberty Zone property. It also includes rules common to both the special depreciation allowance and the special Liberty Zone depreciation allowance regarding how to figure an allowance, how to elect not to claim an allowance, and when you must recapture an allowance.

Useful Items - You may want to see:

Form (and Instructions)

4562
Depreciation and Amortization

See chapter 7 for information about getting publications and forms.

What Is Qualified Property?

Terms you may need to know (see Glossary):

Business/investment use

Improvement

Nonresidential real property

Placed in service

Structural components

You can take the special depreciation allowance for qualified property. The requirements that have to be met for property to be qualified are the same for both the 30% special depreciation allowance and the 50% special depreciation allowance, except for certain tests explained later under Other Tests To Be Met.

Your property is qualified property if it meets the following requirements.

It is new property of one of the following types.
1. Tangible property depreciated under the modified accelerated cost recovery system (MACRS) with a recovery period of 20 years or less. Generally, every type of property except real property has a recovery period of 20 years or less.
2. Water utility property (25-year property described under Which Property Class Applies under GDS in chapter 4).
3. Computer software that is readily available for purchase by the general public, is subject to a nonexclusive license, and has not been substantially modified. (The cost of some computer software is treated as part of the cost of hardware and is depreciated under MACRS.)
4. Qualified leasehold improvement property (defined next).
It is property that meets certain tests (explained later under Other Tests To Be Met).

Qualified leasehold improvement property. Generally, this is any improvement to an interior part of a building that is nonresidential real property, if all the following requirements are met.

The improvement is made under or according to a lease by the lessee (or any sublessee) or the lessor of that part of the building.
That part of the building is to be occupied exclusively by the lessee (or any sublessee) of that part.
The improvement is placed in service more than 3 years after the date the building was first placed in service by any person.
The improvement is section 1250 property. See chapter 3 in Publication 544, Sales and Other Dispositions of Assets, for the definition of section 1250 property.

However, a qualified leasehold improvement does not include any improvement for which the expenditure is attributable to any of the following.

The enlargement of the building.
Any elevator or escalator.
Any structural component benefiting a common area.
The internal structural framework of the building.

Generally, a binding commitment to enter into a lease is treated as a lease and the parties to the commitment are treated as the lessor and lessee. However, a lease between related persons is not treated as a lease.

Related persons. For this purpose, the following are related persons.

Members of an affiliated group.
An individual and a member of his or her family, including only a spouse, child, parent, brother, sister, half-brother, half-sister, ancestor, and lineal descendant.
A corporation and an individual who directly or indirectly owns 80% or more of the value of the outstanding stock of that corporation.
Two corporations that are members of the same controlled group.
A trust fiduciary and a corporation if 80% or more of the value of the outstanding stock is directly or indirectly owned by or for the trust or grantor of the trust.
The grantor and fiduciary, and the fiduciary and beneficiary, of any trust.
The fiduciaries of two different trusts, and the fiduciaries and beneficiaries of two different trusts, if the same person is the grantor of both trusts.
Certain educational and charitable organizations and any person (or, if that person is an individual, a member of that person's family) who directly or indirectly controls the organization.
Two S corporations, and an S corporation and a regular corporation, if the same persons own 80% or more of the value of the outstanding stock of each corporation.
A corporation and a partnership if the same persons own both of the following.
1. 80% or more of the value of the outstanding stock of the corporation.
2. 80% or more of the capital or profits interest in the partnership.
The executor and beneficiary of any estate.

Other Tests To Be Met

To be qualified property for purposes of the special allowance, the property must also meet all of the following tests.

Acquisition date test. To qualify for the 50% special allowance, you must have acquired the property after May 5, 2003, and before January 1, 2005. If a written binding contract to acquire the property existed before May 6, 2003, the property does not qualify.

The 30% special allowance applies to qualified property for which the 50% special allowance does not apply. To qualify for the 30% special allowance, you must have acquired the property after September 10, 2001, and before January 1, 2005. If a written binding contract to acquire the property existed before September 11, 2001, the property does not qualify.

You can elect to claim the 30% special allowance instead of the 50% allowance for property that qualifies for the 50% allowance. This election applies to all property in the same property class placed in service during the tax year. See How Can You Elect Not To Claim an Allowance , later.

Property you manufacture, construct, or produce for your own use meets this test if you began the manufacture, construction, or production of the property after May 5, 2003 (after September 10, 2001, for the 30% special allowance, if applicable), and before January 1, 2005. Property that is manufactured, constructed, or produced for your use by another person under a written binding contract entered into before the manufacture, construction, or production of the property, is considered to be manufactured, constructed, or produced by you.

Placed in service date test. Generally, qualified property must be placed in service before January 1, 2005. However, certain long production period property, transportation property, and non-commercial aircraft placed in service by you before January 1, 2006, qualify for the special allowance.

Long production period property and transportation property must meet the following requirements.

The property must meet all of the requirements discussed earlier under What Is Qualified Property.
The property has a recovery period of at least 10 years or the property is transportation property. Transportation property is tangible personal property used in the trade or business of transporting persons or property.
The property must be subject to section 263A.
The property must have an estimated production period exceeding 2 years or have an estimated production period exceeding 1 year and an estimated production cost exceeding $1,000,000.

Non-commercial aircraft must meet the following requirements.

The aircraft must not be tangible personal property used in the trade or business of transporting persons or property (except for agricultural or firefighting purposes).
The aircraft must be purchased by a purchaser who at the time of the contract for purchase, makes a nonrefundable deposit of the lesser of 10% of the cost or $100,000.
The aircraft must have an estimated production period exceeding four months and a cost exceeding $200,000.
The aircraft must meet all of the tests discussed under Other Tests To Be Met.

Sale-leaseback. If you sold qualified property you placed in service after May 5, 2003 (after September 10, 2001, if applicable), and leased it back within 3 months after you originally placed it in service, the property is treated as originally placed in service no earlier than the date it is used by you under the leaseback.

The property will not qualify for the special allowance if the lessee or a related person to the lessee or lessor had a written binding contract in effect for the acquisition of the property before May 6, 2003 (before September 11, 2001, if applicable).

Syndicated leasing transactions. If qualified property is originally placed in service by a lessor after September 10, 2001, the property is sold within 3 months of the date it was placed in service, and the user of the property does not change, then the property is treated as originally placed in service by the taxpayer no earlier than the date of the last sale.

Multiple units of property subject to the same lease sold after June 4, 2004, will qualify as originally placed in service no earlier than the date of the last sale if the property is sold within 3 months after the final unit is placed in service and the period between the time the first and last units are placed in service does not exceed 12 months.

For special rules explaining when property involved in certain other transactions is treated as originally placed in service, see section 1.168(k)-1T(b)(5) of the regulations.

Original use test. The original use of the property must have begun with you after May 5, 2003, for the 50% special allowance (after September 10, 2001, for the 30% special allowance, if applicable). Original use means the first use to which the property is put, whether or not by you. Therefore, property used by any person before May 6, 2003 (before September 11, 2001, if applicable), does not meet the original use test.

Additional capital expenditures you incurred to recondition or rebuild your property meet the original use test. However, the cost of reconditioned or rebuilt property you acquired does not meet this test. Property containing used parts will not be treated as reconditioned or rebuilt if the cost of the used parts is not more than 20 percent of the total cost of the property.

If you sold new property you placed in service after May 5, 2003 (after September 10, 2001, if applicable), and you leased it back within 3 months after the property was originally placed in service by you, the lessor is considered to be the original user of the property.

For special rules identifying the original user of property involved in certain other transactions and the original user of fractional interests in property, see section 1.168(k)-1T(b)(3) of the regulations.

Change in use. If you acquire new property for personal use and then use the property in your trade or business or for the production of income, you are considered to be the original user. New property acquired by you for personal use after September 10, 2001, and placed in service in your trade or business or for the production of income before January 1, 2005, may be qualified property.

Excepted Property

Qualified property does not include any of the following.

Property placed in service and disposed of in the same tax year.
Property converted from business use to personal use in the same tax year it is acquired. (Property converted from personal use to business use in the same or later tax year may be qualified property. See Change in use, above.)
Property required to be depreciated using the Alternative Depreciation System (ADS). This includes listed property used 50% or less in a qualified business use. For other property required to be depreciated using ADS, see Required use of ADS under Which Depreciation System (GDS or ADS) Applies, in Chapter 4.
Qualified New York Liberty Zone (Liberty Zone) leasehold improvement property (defined next).
Property for which you elected not to claim any special depreciation allowance (discussed later).

Qualified Liberty Zone leasehold improvement property. This is any qualified leasehold improvement property (as defined earlier) if all the following requirements are met.

The improvement is made to a building located in the Liberty Zone (defined under Liberty Zone Property in chapter 2).
The improvement is placed in service after September 10, 2001, and before January 1, 2007.
No written binding contract for the improvement was in effect before September 11, 2001.

What Is Qualified Liberty Zone Property?

Terms you may need to know (see Glossary):

Business/investment use

Nonresidential real property

Placed in service

Residential rental property

Structural components

You can take the special Liberty Zone depreciation allowance for qualified Liberty Zone property. For 2004, your property is qualified Liberty Zone property if it meets the following requirements.

It is one of the following types of property.
1. Used property depreciated under the modified accelerated cost recovery system (MACRS) with a recovery period of 20 years or less. See Can You Use MACRS To Depreciate Your Property in chapter 1.
2. Used water utility property, which is either of the following.
  1. Property that is an integral part of the gathering, treatment, or commercial distribution of water, and that, without regard to this provision, would be 20-year property.
  2. Any municipal sewer.
3. Used computer software that is readily available for purchase by the general public, is subject to a nonexclusive license, and has not been substantially modified. (The cost of some computer software is treated as part of the cost of hardware and is depreciated under MACRS.)
4. Certain nonresidential real property and residential rental property (defined next).
It is property that meets certain tests (explained later under Other Tests To Be Met).

Nonresidential real property and residential rental property. This property is qualified Liberty Zone property only to the extent it rehabilitates real property damaged, or replaces real property destroyed or condemned, as a result of the terrorist attacks of September 11, 2001. Property is treated as replacing destroyed or condemned property if, as part of an integrated plan, such property replaces real property included in a continuous area that includes real property destroyed or condemned.

For these purposes, real property is considered destroyed (or condemned) only if an entire building or structure was destroyed (or condemned) as a result of the terrorist attacks. Otherwise, the property is considered damaged real property. For example, if certain structural components of a building (such as walls, floors, and plumbing fixtures) are damaged or destroyed as a result of the terrorist attacks, but the building is not destroyed (or condemned), then only costs related to replacing the damaged or destroyed structural components qualify for the special Liberty Zone depreciation allowance.

Other Tests To Be Met

To be qualified Liberty Zone property, the property must also meet all of the following tests.

Acquisition date test. You must have acquired the property by purchase after September 10, 2001, and there must not have been a binding written contract for the acquisition in effect before September 11, 2001.

For information on the acquisition of property by purchase, see Property Acquired by Purchase in chapter 2.

Property you manufacture, construct, or produce for your own use meets this test if you began the manufacture, construction, or production of the property after September 10, 2001. Property that is manufactured, constructed, or produced for your use by another person under a written binding contract entered into before the manufacture, construction, or production of the property, is considered to be manufactured, constructed, or produced by you.

Placed in service date test. Generally, the property must be placed in service for use in your trade or business or for the production of income before January 1, 2007 (January 1, 2010, in the case of qualifying nonresidential real property and residential rental property).

Sale-leaseback. If you sold qualified property you placed in service after September 10, 2001, and leased it back within 3 months after you originally placed it in service, the property is treated as originally placed in service no earlier than the date it is used by you under the leaseback.

Multiple units of property subject to the same lease sold after June 4, 2004, will qualify as originally placed in service no earlier than the date of sale if the property is sold within 3 months after the final unit is placed in service and the period between the time the first and last units are placed in service does not exceed 12 months.

For special rules explaining when property involved in certain other transactions is treated as originally placed in service, see section 1.168(k)-1T(b)(5) of the regulations.

Substantial use test. Substantially all (80 percent or more) of the use of the property must be in the Liberty Zone and in the active conduct of your trade or business in the Liberty Zone.

Original use test. The original use of the property in the Liberty Zone must have begun with you after September 10, 2001.

Used property can be qualified Liberty Zone property if it has not previously been used within the Liberty Zone. Also, additional capital expenditures you incurred after September 10, 2001, to recondition or rebuild your property meet the original use test if the original use of the property in the Liberty Zone began with you. However, the cost of reconditioned or rebuilt property you acquired does not meet this test. Property containing used parts will not be treated as reconditioned or rebuilt if the cost of the used parts is not more than 20 percent of the total cost of the property.

If you sold property you placed in service after September 10, 2001, and you leased it back within 3 months after the property was originally placed in service by you, the lessor is considered to be the original user of the property.

Excepted Property

Qualified Liberty Zone property does not include any of the following.

Property placed in service and disposed of in the same tax year.
Property converted from business use to personal use in the same tax year it is acquired. (Property converted from personal use to business use in the same or later tax year is not excepted property.)
Property that also qualifies for the special depreciation allowance.
Property required to be depreciated using the Alternative Depreciation System (ADS). This includes listed property used 50% or less in a qualified business use. For other property required to be depreciated using ADS, see Required use of ADS under Which Depreciation System (GDS or ADS) Applies, in Chapter 4.
Qualified New York Liberty Zone leasehold improvement property (see Qualified New York Liberty Zone leasehold improvement property, earlier, in the discussion on excepted property under What Is Qualified Property).
Property for which you elected not to claim the special Liberty Zone depreciation allowance (discussed later).

How Much Can You Deduct?

Terms you may need to know (see Glossary):

Adjusted basis

Basis

Placed in service

The special depreciation allowance for qualified property is 50% of the property's depreciable basis if the 50% special depreciation allowance applies. It is 30% of the property's depreciable basis if the 30% special depreciation allowance applies. The special Liberty Zone depreciation allowance for qualified Liberty Zone property is 30% of the property's depreciable basis.

For qualified property (or qualified Liberty Zone property) other than listed property, enter the special allowance on line 14 in Part II of Form 4562. For qualified property or qualified Liberty Zone property that is listed property, enter the special allowance on line 25 in Part V of Form 4562.

If you place qualified property (or qualified Liberty Zone property) in service in a short tax year, you can take the full amount of a special depreciation allowance (or special Liberty Zone depreciation allowance).

Depreciable basis. This is the property's cost or other basis multiplied by the percentage of business/investment use and then reduced by the following items allocable to the property.

Any section 179 deduction.
Any deduction for removal of barriers to the disabled and the elderly.
Any disabled access credit, enhanced oil recovery credit, and credit for employer-provided childcare facilities and services.
Basis adjustment to investment credit property under section 50(c) of the Internal Revenue Code.

For information about how to determine the cost or other basis of property, see What Is the Basis of Your Depreciable Property in chapter 1. For a discussion of business/investment use, see Partial business or investment use under Property Used in Your Business or Income-Producing Activity in chapter 1.

Depreciating the remaining cost. After you figure your special depreciation allowance or special Liberty Zone depreciation allowance for your qualified property or qualified Liberty Zone property, you can use the remaining cost to figure your regular MACRS depreciation deduction (discussed in chapter 4). Therefore, you must reduce the depreciable basis of the property by the allowance before figuring your regular MACRS depreciation deduction.

Example 1.

On November 1, 2004, Tom Brown bought and placed in service in his business qualified property that cost $200,000. He did not elect to claim a section 179 deduction. He deducts 50% of the cost ($100,000) as a special depreciation allowance for 2004. He uses the remaining $100,000 of cost to figure his regular MACRS depreciation deduction for 2004 and later years.

Example 2.

The facts are the same as in Example 1, except that Tom chooses to deduct $100,000 of the property's cost as a section 179 deduction. He uses the remaining $100,000 of cost to figure his special depreciation allowance of $50,000 ($100,000 × 50%). He uses the remaining $50,000 of cost to figure his regular MACRS depreciation deduction for 2004 and later years.

Like-kind exchanges and involuntary conversions. If you acquire qualified property in a like-kind exchange or involuntary conversion, the carryover basis of the acquired property is eligible for a special depreciation allowance. After you figure your special depreciation allowance, you can use the remaining carryover basis to figure your regular MACRS depreciation deduction. In the year you claim the allowance (the year you place in service the property received in the exchange or dispose of involuntarily converted property), you must reduce the carryover basis of the property by the allowance before figuring your regular MACRS depreciation deduction. See Figuring the Deduction for Property Acquired in a Nontaxable Exchange, in chapter 4, under How Is the Depreciation Deduction Figured. The excess basis (the part of the acquired property's basis that exceeds its carryover basis) is also eligible for a special depreciation allowance.

How Can You Elect Not To Claim an Allowance?

Terms you may need to know (see Glossary):

Property class

For qualified property acquired after May 5, 2003, you can elect, for any class of property, either:

To deduct the 30% special allowance, instead of the 50% allowance, for all property in such class placed in service during the tax year, or
Not to deduct any special allowances for all property in such class placed in service during the tax year.

For qualified property acquired before May 6, 2003, and for qualified Liberty Zone property, you can elect, for any class of property, not to deduct the 30% special allowance for all property in such class placed in service during the year.

To make an election, attach a statement to your return indicating what election you are making and the class of property for which you are making the election.

When to make election. Generally, you must make the election on a timely filed tax return (including extensions) for the year in which you place the property in service.

However, if you timely filed your return for the year without making the election, you can still make the election by filing an amended return within 6 months of the due date of the original return (not including extensions). Attach the election statement to the amended return. On the amended return, write “Filed pursuant to section 301.9100-2.”

Revoking an election. Once you elect not to deduct a special depreciation allowance (or special Liberty Zone depreciation allowance) for a class of property, you cannot revoke the election without IRS consent. A request to revoke the election is a change in method of accounting for depreciation. See Changing Your Accounting Method in chapter 1.

When Must You Recapture the Allowance?

Terms you may need to know (see Glossary):

Disposition

Recapture

When you dispose of property that you depreciated, any gain on the disposition is generally recaptured (included in income) as ordinary income up to the amount of the depreciation previously allowed or allowable for the property. A special depreciation allowance (or special Liberty Zone depreciation allowance) deducted for qualified property (or qualified Liberty Zone property) is considered to be depreciation for this purpose and is therefore subject to recapture. See When Do You Recapture MACRS Depreciation in chapter 4 for more information.